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Last Updated: Mar 17th, 2008 - 03:39:12 |
The purpose of this letter is to inform the City of Fullerton that the Revised Draft Environmental Impact Report (“Revised DEIR” or “RDEIR”) for the West Coyote Hills Project, like its September 2003 predecessor, fails to comply with the requirements of the California Environmental Quality Act (“CEQA”), Public Resources Code § 21000 et seq., and the CEQA Guidelines, California Code of Regulations, title 14, § 150000 et seq. (“CEQA Guidelines”). In addition, this letter also explains why the Draft West Coyote Hills Specific Plan Amendment (“Draft Specific Plan”), which apparently was not revised, fails to comply with the state statutory requirements governing the contents of specific plans. See Gov. Code § 65450 et seq. This letter, along with the attached biological report from consulting biologists Catherine Rich and Travis Longcore with Land Protection Partners (see Land Protection Partners report, attached as Exhibit __ ) and attached public health and safety and hydrological report from Bruce Abelli-Amen and Julie Pettijohn with Baseline Environmental Consulting (see C.V./Biography, attached as Exhibits __ and __ and Baseline report, attached as Exhibit ___), constitute Friends of Coyote Hills’ comments on the RDEIR.
I. INTRODUCTION
The Project’s proponent, Chevron’s Pacific Coast Homes, has proposed an amendment to the Coyote Hills West Master Specific Plan 2-A that would pave the way for the development of 760 dwelling units on one of the last remaining large, undeveloped properties in the City. The site supports one of the largest populations of California gnatcatchers towards the northern extent of this species’ known range, provides visual relief and offers natural scenic beauty and recreational opportunities for area residents. The Project would scar the hillsides and destroy acres of critical habitat for the gnatcatcher and other important. Yet the RDEIR reaches the astonishing conclusion that most of the Project’s impacts would be insignificant or would be mitigated to a level of less than significant. The RDEIR’s conclusions, however, are based on inadequate analysis and the application of mitigation measures of questionable efficacy.
In our November 26, 2003 letter, this firm submitted comments on behalf of Friends of Coyote Hills detailing the numerous legal deficiencies and factual inaccuracies in the City’s September 2003 DEIR for the Project. Despite our specific recommendations, the RDEIR still fails to provide a stable, accurate and detailed project description, thus undermining every aspect of the impacts analysis. For example, the RDEIR fails to describe the development agreement that has been prepared for the Project despite the fact that this agreement will lock in development rights for decades into the future. The RDEIR also neglects to describe the necessary General Plan amendments, undermining its ability to determine whether the amendments will create environmental impacts of their own. Further, the RDEIR’s analysis of Project impacts is based on an incomplete description of the Project since it fails to consider impacts from accessory dwelling units that may be permitted in addition to the 760 units.
The RDEIR’s analysis of the Project’s biological impacts remains sorely deficient. For example, the document’s conclusion that impacts to the gnatcatcher will be mitigated to a level of less than significant is based on an outdated and flawed Biological Opinion. Moreover, the RDEIR still all but ignores impacts to sensitive wildlife species other than the California gnatcatcher. Rather than conduct a detailed investigation of impacts to the coastal cactus wren, Cooper’s hawk, sharp-shinned hawk, red-shouldered hawk, Southern California rufous-crowned sparrow, white-tailed kite, northern harrier, California horned lark, loggerhead shrike, tricolored blackbird, Bell’s sage sparrow, western spade foot toad and the monarch butterfly – all species that the RDEIR admits exist on the Project site – the RDEIR relies on the flawed and inapposite analysis applicable to the California gnatcatcher to conclude that the Project’s impacts to these species will be less than significant.
Despite our earlier comments, the RDEIR still substantially understates the Project’s water quality impacts because it omits critical information. For example, the RDEIR does not adequately consider the impacts of the Project’s drainage on water quality, failing in particular to consider the cumulative impacts of the Project on the important and increasingly threatened Coyote Creek. Indeed, the document completely overlooks the fact that Coyote Creek is listed as “impaired” under the Clean Water Act for several pollutants.
The RDEIR’s analysis of the public health and safety impacts from constructing residences on a site with a long history of oil and gas production remains sorely deficient. The RDEIR takes the same “trust me” approach as the original DEIR, and continues to fail to provide information on the extent of site contamination and the methods of remediation. For example, the City has failed to fully characterize the extent of PCBs and other contaminants on the site. The so-called Remedial Action Plan lacks specific details regarding how the site will be remediated. Furthermore, the Human Health Risk Assessment avoids analysis of health risks by making unsupported assumptions – not permitted under applicable U.S. EPA guidance – characterizing certain exposures as “de minimus.”
The RDEIR’s analysis of cumulative impacts does not correct any of the document’s original deficiencies. In fact, the cumulative impacts analysis is even worse since it includes fewer related past, present and future projects. Moreover, even though one might expect the Project’s cumulative impacts to be lessened with a smaller number of cumulative projects, the RDEIR’s boilerplate discussion of cumulative impacts did not change at all. Equally troubling, the RDEIR still fails to analyze a reasonable range of alternatives. The document lacks a truly “environmentally superior” alternative that decreases the footprint of the proposed development and the number of homes proposed.
Overall, the RDEIR leaves decision-makers and members of the public with the false impression that impacts from the West Coyote Hills Project will be benign. The only legally acceptable solution is that the City must prepare another revised DEIR that remedies the document’s numerous deficiencies. Only by circulating a corrected document can the public, decision-makers and the affected agencies be adequately informed of the actual environmental impacts of the Project.
Finally, the Draft Specific Plan still fails to comply with the statutory requirements because it ignores several essential infrastructure components and fails to provide a detailed financial plan.
II. THE REVISED DEIR DOES NOT COMPLY WITH THE CALIFORNIA ENVIRONMENTAL QUALITY ACT.
A. The Revised DEIR’s Project Description is Flawed.
In direct contravention of CEQA, the RDEIR’s cursory project description fails to adequately discuss fundamental aspects of the Project, including a development agreement that was not made publicly available and which seeks to vest development rights in the applicant prior to a full understanding of potential project impacts. As a result of the RDEIR’s failure to discuss key Project components, such as the necessary General Plan amendments, potentially significant environmental impacts are not adequately analyzed or addressed.
Under CEQA, EIRs must contain a clear and comprehensive project description. The EIR’s project description is critical to meaningful public review. See City of Redlands v. County of San Bernardino, 96 Cal.App.4th 398, 406 (2002). Among other components, an EIR’s project description must contain a “general description of the project’s technical, economic, and environmental characteristics, considering the principal engineering proposals if any and supporting public service facilities.” CEQA Guidelines § 15124(c). “A curtailed or distorted project description may stultify the objectives of the reporting process. Only through an accurate view of the project may affected outsiders and public decision‑makers balance the proposal’s benefit against its environmental cost, consider mitigation measures, assess the advantage of terminating the proposal . . . and weigh other alternatives in the balance. An accurate, stable and finite project description is the sine qua non of an informative and legally sufficient EIR.” County of Inyo v. City of Los Angeles 71 Cal.App.3d 185, 192‑193 (1977) .
1. The Project Description Avoids Any Meaningful Discussion of the Proposed Development Agreement.
The Revised DEIR notes, in one short paragraph, that the Project will include a development agreement. RDEIR at 3‑25. The text of this development agreement is not included anywhere in the RDEIR, nor does the document indicate where or how it might be obtained. Instead, the document simply states all of the elements that the agreement may include, such as conditions, terms, restrictions and requirements for subsequent actions, but does not explain what those conditions, terms and restrictions will be in this case. The development agreement was not included among the publicly available environmental documents for the project. As courts have repeatedly held, the purpose of CEQA “is to inform the public and its responsible officials of the environmental consequences of their decisions before they are made.” Laurel Heights II, 6 Cal.4th 1112 (1993) (Laurel Heights II). In direct contravention of CEQA’s fundamental purpose, the RDEIR’s failure to provide the public with any meaningful description of the development agreement precludes the public from evaluating the terms and conditions of the agreement.
This is particularly disturbing as development agreements typically seek to “lock in” development rights – including existing regulations and the density and intensity of development – over an extended period of time. As such, development agreements have the potential to greatly exacerbate the potential impacts of a project, by limiting the flexibility of the permitting authority to impose additional mitigation measures or reduce the intensity of development at later discretionary phases of the project. This problem is only compounded where, as here, the development of critical mitigation measures is deferred to the indefinite future.
The RDEIR’s failure to provide any specifics regarding the development agreement constitutes a fatal shortcoming in the Project Description and the subsequent analysis of Project impacts. To comply with CEQA, the RDEIR must be recirculated with the development agreement.
2. The Revised DEIR Fails to Adequately Describe Project Features.
The Project Description’s failure to describe numerous project features undercuts the RDEIR’s analysis of the Project. In addition to failing to describe the development agreement, the document also omits any description of the necessary General Plan amendments for the Project. The RDEIR states that amendments to the Land Use, Housing, Circulation, Resource Management, and Community Services Elements will be required. However, the document provides only bare bones descriptions of what types of amendments will be required. This rudimentary information is no substitute for providing the actual text of the General Plan amendments. Without the actual text of the amendments, the public and decisionmakers cannot determine whether the amendments will have far reaching or unintended environmental consequences of their own. The Project Description should be revised to include this information.
The RDEIR also fails to describe necessary project improvements and approvals. For example, the Project needs an Army Corps of Engineers 404 permit, a California Department of Fish and Game Streambed Alteration Agreement, and a Regional Water Quality Control Board Section 401 approval (Water Quality Certification).
The Project Description also provides inconsistent and incomplete information regarding the types of units provided as part of the Project. The Draft Specific Plan states that the Project will include 183 Single Family Attached (“SFA”) and 577 Single Family Detached (“SFD”) units. The RDEIR, on the other hand, states that the Project will include 204 SFA and 556 SFD units. Apart from this inconsistency, the document does not provide any information regarding whether these units will be affordable or market-rate. As a result, the public and decisionmakers cannot properly evaluate whether the Project is consistent with the City’s affordable housing needs.
In addition, the Project Description fails to consistently and completely describe the wireless communications towers that will be permitted uses as part of the Project. The RDEIR states that wireless towers will be permitted uses in Open Areas A, B, and C. RDEIR at 4.11-31. However, the Draft Specific Plan states that wireless towers will only be permitted uses in Area B. Specific Plan Amendment at 2-57. The Project Description should clarify where these towers will be allowed. Furthermore, the Project Description should describe the height limitations on these towers and what design review guidelines will be applied to ensure that their aesthetic impacts are less than significant.
The Project Description section fails to provide any details about how the Project’s Open Space areas will be used. The document should explain whether they will be open to the pubic, or reserved for wildlife. Also, it appears that these Open Space areas will not be fully remediated, the RDEIR should explain how the City intends to restrict access in these areas.
The Project Description also fails to provide any details about construction. The document should explain, for example, how long construction will take and what kinds of equipment will be used.
The Transportation and Circulation Section states that the Project will include the construction of a bridge over Gilbert Street. RDEIR at 4.2-12. However, the RDEIR fails to describe where this bridge will be located, its dimensions, and whether it will be visible from adjacent properties. As a result, the Project’s aesthetic and transportation impacts cannot be fully assessed.
As discussed below in section B, the RDEIR also fails to clearly describe how much of the site would be disturbed upon Project development. This shortcoming completely undermines the document’s ability to analyze the Project’s biological impacts.
3. The Revised DEIR Minimizes the Extent of the Project By Failing to Describe and Analyze Full Build‑Out Conditions.
The DEIR limits its project description to the proposed 760 dwelling units without quantifying the “accessory buildings, structures, and habitable spaces” allowed under the Specific Plan Amendment. See Specific Plan Amendment at 2-15. This narrow definition understates the extent of proposed development and its corresponding impacts. Accessory dwelling units could house a significant number of additional residents in the West Coyote Hills, yet the additional traffic, air quality, water supply and other impacts from these potential Fullerton residents are ignored. The RDEIR must be revised to include a description of the maximum number of accessory units that could be developed under the Project as proposed, and analyze the impacts of such development.
B. The Revised DEIR’s Analysis of and Mitigation for the Project’s Impacts on Biological Resources Are Inadequate.
The proposed Project would result in the development of the last remaining private open space in the West Coyote Hills, resulting in locally and regionally significant extirpation of several sensitive grassland birds species (e.g., loggerhead shrike, horned lark, white‑tailed kite, tricolored blackbird), raptors, and sensitive coastal sage scrub species (e.g., rufous‑crowned sparrow, sage sparrow). Given the local and regional significance of the site’s plant and wildlife communities together with the fact that numerous members of the public commented on the inadequacy of the original DEIR’s analysis of biological resources, one would expect that the RDEIR would have treated this issue comprehensively. Yet the analysis remains as technically flawed and legally deficient as the original DEIR.
In fact, the RDEIR’s so-called analysis of biological impacts achieves a result exactly opposite from what CEQA requires. Under CEQA, decisionmakers and the public are to be given sufficient information about impacts and mitigation to come to their own judgments and decisions. See Pub. Res. Code 21061. This RDEIR’s strategy is to withhold information and to encourage the public and decisionmakers to trust that the applicant will ultimately mitigate the Project’s impacts. The Project’s critical discussion of biological impacts must explain exactly what will happen on the West Coyote site if the Project goes forward. See Citizens of Goleta Valley v. Board of Supervisors, 52 Cal.3d 553, 568 (1990) (“[T]he EIR must contain facts and analysis, not the agency’s bare conclusions . . . .”). The RDEIR must offer some specific information about the consequences of this Project. It cannot, as the RDEIR does over and over again, merely acknowledge that the Project may have consequences and then assert that those consequences will be mitigated. A complete revision and recirculation is the only way that this document can come into compliance with CEQA.
1. The DEIR Fails to Accurately Describe the Project.
A fundamental flaw with the RDEIR which implicates the analysis of impacts to biological resources is the failure of the document to clearly describe how much of the site would be disturbed upon Project development. As Land Protection Partners explains, the RDEIR does not accurately disclose Project impacts to sensitive vegetative communities. Of particular concern is the fact that the proposed grading plan (Exhibit 4.5‑4) shows cut and fill in locations that are mapped as “existing undisturbed vegetation,” which is not proposed for development, on the revegetation potential map (Exhibit 4.12‑7). The RDEIR should reveal the true extent of site disturbance, which will extend to the areas mapped on the grading plan.
Moreover, the graphic depicting cut and fill is inconsistent with the map of project‑related habitat impacts (Exhibit 4.12‑6) because grading is clearly shown in areas mapped as outside of the project footprint. For example, the map of project-related habitat impacts shows a limited amount of “disturbed” sage scrub habitat. However, grading activities will extend far beyond the project footprint depicted on the map, thus disturbing an additional amount of sage scrub habitat. [Confirm with LPP] Until these and other details of the Project are clarified, neither the public nor decisionmakers can ascertain the severity and extent of impacts to sensitive habitats and the wildlife that rely on this habitat.
2. The DEIR Fails to Fully and Accurately Describe the Project’s Biological Setting.
As Land Protection Partners explains, the RDEIR takes a narrow, piecemeal view of the site’s extraordinarily rich biological communities. Rather than depict the interlocking networks of habitat and species that span the site’s boundaries, the RDEIR focuses almost exclusively on the California gnatcatcher as if it were the only species worthy of detailed study. The document also consistently misrepresents the importance of the vegetative communities on the West Coyote Hills site. Although the RDEIR describes the flora on the West Coyote Hills site as “exceedingly depauperate” (at 4.12-5), the project applicant’s own biological reports show and as Land Protection Partners’ report confirms, the flora on this site is extraordinarily rich in diversity. Indeed [Laurel confirm: Dudek’s ...... surveys have ] recorded 83 species of native plants. Had the project applicant’s biologists conducted surveys according to appropriate protocols, it is quite likely that far more than 83 native plant species would have been observed on site. The RDEIR’s misleading characterization of the rich flora and fauna on site leads to an inaccurately sparse view of the site’s ecology.
3. The DEIR Fails to Adequately Analyze and Mitigate the Project’s Impacts on Biological Resources.
a) California Gnatcatcher
The RDEIR fails to support with substantial evidence its conclusions that impacts to the California gnatcatcher would be mitigated to a less than significant level. Specifically, the RDEIR relies on purported compliance with the conditions set forth in a 2004 Biological Opinion to conclude that there would be no adverse impacts to this species. However, as Land Protection Partners explain, the Project has changed significantly since the applicant negotiated the terms of that Biological Opinion. Specifically, more coastal sage scrub habitat and designated critical habitat would be impacted by the proposed Project than originally contemplated. Moreover, although the Project now includes about one-half dozen flood control basins, the Biological Opinion does not acknowledge the obvious impact of these basins (e.g., loss of coastal sage scrub habitat and the potential harm to wildlife which would rely on these potentially contaminated water sources). The Biological Opinion also fails to take into account other impacts of the Project including the introduction of artificial night lighting, noise and domestic pets on the site’s wildlife. Because of these and myriad other discrepancies between the current proposed Project and the Project analyzed in the 2004 Biological Opinion, the RDEIR cannot rely on the 2004 Biological Opinion to conclude that impacts to gnatcatchers would be mitigated to a less than significant level.
b) Other Bird Species
As discussed above, the RDEIR has a blind spot when it comes to the impacts of the Project on every species other than gnatcatcher. Although the RDEIR admits that a total of 114 bird species are common residents to or migrants of the site, with the exception of the gnatcatcher and the general category “raptors,” the RDEIR never actually analyzes impacts to these species. The RDEIR’s thresholds of significance could not be more clear. An impact to plant and wildlife would be significant if “[a] substantial adverse effect, either directly or through habitat modifications, on any species identified as a candidate sensitive, or special status species in local or regional plans, policies, or regulations, or by the California Department of Fish and Game or U.S. Fish and Wildlife Service.” RDEIR 4.12-29. One would expect, based on these significance criteria, that the RDEIR preparers would have thoroughly examined the Project’s potential impacts on these 114 bird species (not to mention the other wildlife species) that occupy or use the West Coyote site.
Rather than actually conduct such an analysis, the RDEIR inappropriately relies on the conclusion in the 2004 Biological Opinion that the proposed Project will not jeopardize California gnatcatcher as evidence that impacts to sensitive coastal sage scrub habitats will not be significant after mitigation. The problems with this approach stem far beyond the blatant legal violations (i.e., failure to actually analyze project impacts and deferral of mitigation until after project approval). See Citizens of Goleta Valley, 52 Cal.3d at 568; CEQA Guidelines § 15126.4(a)(1)(B) (“Formulation of mitigation measures should not be deferred until some future time.”); see also Sundstrom v. Mendocino County, 202 Cal. App. 3d 296, 307 (1988) (“The requirement that the applicant adopt mitigation measures recommended in a future study is in direct conflict with the guidelines implementing CEQA.”). As Land Protection Partners make clear, this reliance is wholly inappropriate because the Biological Opinion pertains only to California gnatcatcher, not to the entire coastal sage scrub community. Not all species that use coastal sage scrub have the same habitat preferences as California gnatcatchers. Had the RDEIR actually analyzed impacts to these 114 bird species, it would have evaluated how the loss of sensitive vegetation types affects all of the site’s wildlife, not just one target species. The RDEIR simply never considered the different habitat requirements of the many sensitive species found at the site nor did it analyze the different habitat mix that would be found at the site following development. In fact, restoring coastal sage scrub, as proposed by the Biological Opinion to mitigate for impacts to California gnatcatchers, would actually degrade the site as habitat for other sensitive species currently found on site (e.g., white‑tailed kite). By failing to recognize the importance of habitats other than coastal sage scrub to sensitive species (e.g., grasslands for northern harrier), the RDEIR fails in its burden to disclose and sufficiently mitigate impacts to sensitive species.
c) Raptors
The document does make a feeble attempt at analyzing impacts on “other species” by devoting one sentence each to raptors and coyotes. RDEIR at 4.12-43. As to raptors, the RDEIR simply asserts that they would be affected by a reduction in nesting resources, ignoring altogether the impacts caused by loss of habitat. Merely stating that an impact will be significant is insufficient; an EIR must also provide “information about how adverse the adverse impact will be.” Santiago County Water District v. County of Orange, 118 Cal. App. 3d 818, 831 (1981). This information, of course, must be accurate and more than mere conclusions or speculation. Id. As Land Protection Partners explain, urbanization has a profound effect on raptors because they require large areas to hunt and are disturbed by human activity near their nests. Moreover, the Project would result in modification of the environment to increase the prevalence of those characteristics shown to negatively impact raptor populations (e.g., humans, disease vectors, windows, cars and fertilizers). The RDEIR’s sole mitigation proposal for raptors focuses exclusively on establishing perch resources, and ignores the role that loss of habitat and urbanization have on raptors. In any event, the RDEIR must quantify the Project’s effects on raptors, and the efficacy of the proposed mitigation, so that the public and decisionmakers may reach their own conclusions. Id.; Save Our Peninsula Committee v. Monterey County Board of Supervisors, 87 Cal. App. 4th 99, 130 (2001).
d) Wetlands
Short-cutting the CEQA process, the RDEIR’s section on wetland resources provides only a rote quantification of lost ACOE and CDFG jurisdicational acreage but fails altogether to actually analyze the Project’s impact upon wetland resources. RDEIR at 4.12-44 and 45. This perfunctory approach to impact analysis ignores altogether the role that the site’s wetlands play in overall ecological integrity and the value that wetlands have for plant and wildlife communities. Not surprisingly, the RDEIR’s “mitigation” for wetlands is woefully inadequate under CEQA. Here too, the RDEIR defers mitigation relying instead on a promise to obtain permits from the ACOE and CDFG (which would be required anyway) and to develop a wetland replacement plan that “ideally” would result in a no net loss of wetland habitat acreage and value. RDEIR at 4.12-48.
Setting aside the clear legal violations of this approach, restoration is a suboptimal method to mitigate for wetland losses. As Land Protection Partners explain, it is extraordinarily difficult to recreate wetlands so that they meet minimal levels of wetland functions. The RDEIR contains no evidence that future wetlands will serve a similar role in the landscape as do the current wetlands and streams. In fact, rather than restoring wetlands for purposes of protecting biological values, the project applicants intend to use the newly created wetlands for stormwater needs. Under this troubling scenario, wetlands that are currently ephemeral have a high likelihood of becoming perennial streams as a result of irrigation from new upstream development. From a wildlife perspective this would be the equivalent of trading Least Bells Vireo in for coots.
Ephemeral streams are now a rare habitat type in southern California; transformation of an ephemeral stream into a perennial stream should be considered a significant impact, not mitigation.
4. The RDEIR Completely Ignores Other Biological Resources Impacts.
In far too many instances, the RDEIR fails to even acknowledge, let alone analyze, the significant impacts to biological resources resulting from development of the Project. Set forth below are just a few of the impacts that the RDEIR ignores. A full description of these potential impacts is provided in Land Protection Partners’ report.
· Anticoagulant Rodenticide/Poisons – Although the document acknowledges that raptors could be impacted by potential secondary effects of vertebrate pest management poisons, it fails to adequately describe the severity and extent of this potential impact on raptors (or all other wildlife that inhabit the site).
· Increased Roadkill – The RDEIR fails to acknowledge, let alone analyze, the Project’s contribution to wildlife mortality from motor vehicles.
· Fuel Modification – The RDEIR fails to analyze impacts associated with fuel modification zones and appears to have actually assumed that these revegetation zones should be assumed as mitigation vegetation for purposes of “mitigating” impacts to the California gnatcatcher.
· Noise – The RDEIR fails to acknowledge, let alone analyze impacts to wildlife from increased noise levels, both during construction and upon occupancy of the proposed Project.
· Artificial Night Lighting – The RDEIR fails to identify and analyze impacts to wildlife from increased illumination from direct or scattered light.
· Domestic Pets – The RDEIR fails to adequately analyze impacts to wildlife resulting from the introduction of domestic pets onto the site.
5. The RDEIR Fails to Adequately Analyze the Project’s Cumulative Effects on Biological Resources.
The RDEIR makes a mockery of the cumulative impact analysis requirement under CEQA. Although the document contains a lengthy list of other development in the area (see Table 5-1), it stops short of actually examining the effect to biological resources from the West Coyote Hills project with these other projects. Moreover, as with the rest of the document’s flawed analysis of biological resources, the RDEIR focuses almost exclusively on California gnatcatcher impacts, and even this analysis is fraught with problems. Indeed, the RDEIR appears to base its conclusion that impacts to gnatcatcher would be less than significant relying on two flawed assumptions. First, that there are no existing large blocks of natural habitat or population of gnatcatchers within several miles of the site and second that the Centrex Homes/Emery Ranch projects conserve open space and implement conservation measures thereby minimizing cumulative impacts to biological resources. RDEIR at 5-8.
The first assumption is just wrong. As Land Protection Partners clearly show, the West Coyote Hills are an important part of the dwindling mosaic of natural habitats in the southern California coastal plain. The West Coyote Hills are within dispersal reach of other California gnatcatcher populations and in fact California gnatcatchers from West Coyote may be part of the same population as those in the Puente Hills/Chino Hills. Recent surveys have shown that the distribution of California gnatcatchers in the Puente Hills is more extensive than previously supposed. Gnatcatchers were detected just west of Harbor Boulevard at Fullerton Road, a 5.9‑km straight‑line distance from West Coyote Hills. Gnatcatchers are certainly able to move between West Coyote Hills and East Coyote Hills, a distance under 3.5 km with ample stepping stones and well‑vegetated backyards. From East Coyote Hills it is just over 4 km to known occupied habitat in the Puente Hills. Published studies show that juvenile California gnatcatchers can disperse up to 5 km across human‑dominated landscapes, and even as far as 7.5 km. For example, a juvenile gnatcatcher in San Diego dispersed at least 4.8 km across a route including medium‑ and high‑density residential development, two freeways, and numerous major roads on its way from Tecolote Creek to Point Loma. Dispersal of this magnitude does not have to be frequent to maintain demographic connections between populations. Furthermore, and most importantly, this dispersal ability indicates that the West and East Coyote Hills populations of gnatcatchers could act as a source population for the Puente Hills/Chino Hills populations in the event of a catastrophe there, and vice versa. The presence of a population of gnatcatchers in the West Coyote Hills within the regional metapopulation of California gnatcatchers increases the viability of the metapopulation as a whole.
As for the assumption that cumulative biological resources impacts would be minimized because other development projects are conserving open space and implementing conservation measures, the discussion is entirely generic and makes no reference to the actual conditions on the ground. This shocking assumption – that development would mitigate impacts to the gnatcatcher – belies common sense. The RDEIR never bothers to actually explain how the purported conservation of open space from these projects would ensure that there would be no cumulative effect on the gnatcatcher population.
With the exception of a passing glance to cactus wren habitat, the RDEIR fails to even mention, let alone analyze, cumulative impacts to the other species that inhabit the West Coyote Hills site. The RDEIR must be recirculated to provide an analysis of cumulative impacts as required by CEQA.
C. The Revised DEIR Fails to Adequately Analyze Public Health and Safety Impacts from Soil Contamination at the Project Site.
The Project’s 760 homes would be constructed on a 100-year-old oil field containing numerous “areas of environmental concern.” RDEIR 4.9-2. The revised document discloses hundreds of sites of potential concern that contain petroleum hydrocarbons, PCBs, heavy metals, arsenic and other contaminants remaining from former oil field activities. Id. at 4.9-5 to 4.9-6. As set forth in the attached Baseline Report (Exhibit ___) and the April 20, 2006 letter from the Department of Toxic Substance Control (submitted under separate cover), the RDEIR still fails to assess the full extent of this contamination and its potential impacts on public health and safety. The RDEIR’s conclusion that these impacts will be mitigated to a level of insignificance is based on a “trust me” approach that is wholly unsupported by the analysis in the document.
For example, the Revised DEIR admits that the City has not yet completely characterized the extent of PCB contamination. RDEIR at 4.9-6. Nevertheless, the document asserts that PCB-contaminated soil will be remediated – by some undisclosed method – to a level of 220 ppb. However, without knowing the extent of the contamination or the method of remediation, it is impossible to determine whether this treatment goal is even feasible. Moreover, the Revised DEIR does not explain how this treatment goal was derived or whether it was approved by any regulatory agency.
As explained in the Baseline Report, the RDEIR also overlooks potential health and safety impacts from construction activities. Construction of this large Project could extend several years, and workers will likely be exposed to hazardous materials and contaminants during site grading and development. Instead of analyzing these potential impacts, the document obliquely refers to regulations of the Orange County Health Care Agency without explaining what these requirements might be. Without this information, it is impossible to conclude that construction health and safety impacts will be less than significant.
Furthermore, the document fails to set forth the cleanup criteria for the so-called “restricted” open space areas. Presumably, the City assumes that no one will access the open space areas, so they do not need to be remediated to the same levels as residential areas. However, the City appears to overlook recreational users such as children, mountain bikers and hikers who may seek out undisturbed terrain for recreational activities. The document should explain how the City will ensure that such areas remain restricted and what cleanup criteria will apply.
Because soil concentrations of petroleum hydrocarbons and other compounds are unacceptable from a public health perspective, the City was required to prepare a Remedial Action Plan (“RAP”). Yet the RAP fails to inform the public and decisionmakers of how the contaminated soil will be remediated to acceptable levels. For instance, it fails to describe how contaminated soil will be excavated and what precautions will be required for workers. Most egregiously, the RAP fails to explain what cleanup criteria will be applied to metals, semi-volatiles and other non-TPH (total petroleum hydrocarbon) compounds. See RAP at 2-4 to 2-5.
The new Human Health Risk Assessment (“HHRA”) is also sorely deficient. Contrary to U.S. EPA guidance, the document relies on data that was derived from purposive sampling efforts. The use of purposive sampling – as opposed to random sampling – can significantly understate the extent of contamination on a particular site. In addition, the HHRA discloses that, due to paperwork errors, dozens of samples of hydrocarbons and 52 samples of metals were not able to be identified for site characterization efforts. This oversight is inexcusable because the remaining data set is not adequate for risk assessment purposes. Moreover, the errors raise serious questions about the same chain-of-custody and quality assurance/quality control procedures for the entire dataset used in the HHRA.
The HHRA also completely understates risks to remediation workers and future Coyote Hills residents because it assumes that exposure would be “de minimus.” However, accepted EPA methodology does not authorize the use of de minimus assumptions to avoid analysis of sensitive receptors. The HHRA’s use of this unsupported methodology is unacceptable and fails to adequately characterize risks from exposure to the site’s hazardous substances.
Finally, the HHRA’s conclusions are entirely suspect because its conclusions are based on a insufficient amount of data for numerous contaminants. See Baseline report at ____ (more on this?). In sum, the Revised DEIR’s conclusion that public health and safety impacts can be mitigated to a level of less than significant is not supported by substantial evidence in the record. See id. at ____.
D. The Revised DEIR Fails to Support Its Conclusion that Water Quality and Hydrology Impacts Will Be Less Than Significant.
The RDEIR fails to remedy the major inadequacies identified in our November 2003 letter. As discussed in the attached Baseline report, the RDEIR does not adequately describe the existing surface or groundwater conditions. Most egregiously, the document fails to state that Coyote Creek is listed as “impaired” under the Clean Water Act for algae, abnormal fish histology, copper, coliform, lead, selenium, toxicity and zinc in the 2003 303(d) list. The Project involves the excavation of approximately 3,700,000 cubic yards of soil, leaving only 29 percent of the western portion and 47 percent of the eastern portion of the site undisturbed. See Draft Specific Plan at 4-4 to 4-5. The RDEIR concedes that development of the Project will increase concentrations of nutrients, heavy metals and other pollutants. Revised DEIR at 4.10-6. Yet the RDEIR simultaneously concludes that water quality impacts will be less than significant.
Any increase in discharge of listed pollutants to a water body that is designated as “impaired” is a significant and unavoidable adverse impact unless the City can demonstrate that water quality measures will be 100 percent effect. Baseline Report at ___. Here, the City proposes best management practices (“BMPs”) to mitigate these adverse water quality impacts. However, the Revised DEIR completely fails to explain how these BMPs will reduce impacts to a level of insignificance. Indeed, no claim is made in the document regarding the effectiveness of the BMPs. As explained in the Baseline Report, “[u]nless it can be demonstrated that the 303(d)-listed pollutant concentrations in the site runoff are the same or lower at the developed project relative to existing conditions, it is not possible to designate this impact as insignificant.” Baseline Report at ___.
The RDEIR also fails to explain how water quality impacts from construction activities will be reduced to a level of insignificance. The RDEIR relies on the Project’s assumed compliance with the West Coyote Hills Stormwater Management Plan, a NPDES Permit and the preparation of a Storm Water Pollution and Prevention Plan (“SWPPP”), to conclude that construction impacts would not be significant. RDEIR at 4.10-5 to 4.10-6. Despite the City’s general promise to comply with applicable regulations, the RDEIR is devoid of detail regarding the length of construction or the contents of the permits, plans and SWPPP. Moreover, we can find no evidence that the City has prepared a SWPPP for the area east of Gilbert Street (id.), even though the vast majority of the proposed excavation would take place in this area. Deferring the preparation of such plans until after Project approval renders the RDEIR useless as an informational and planning document, and defeats CEQA’s purpose of alerting decision-makers and the public to environmental impacts when mitigation measures can still be imposed and alternatives considered. See Sundstrom, 202 Cal.App.3d at 306-07. Thus, the RDEIR’s conclusion that water quality permit compliance and implementation of the SWPPP will result in no significant impacts is simply not supported by evidence in the document.
With respect to hydrology, the RDEIR acknowledges that “[m]any drainage deficiencies exist within the City, particularly in the flatter areas of the City, from the foothills south.” RDEIR at 4.10-2. This is hardly surprising, since the existing drainage facilities in the City were constructed in the late 1950s and have capacities based on only a 10-year-storm event. The proposed development covers a large area and will increase runoff of some areas of the site by up to 48 percent. This combination (large site and large increase in runoff) would result in the rapid delivery of new large quantities of runoff to a system that is already undersized, exacerbating existing drainage and flooding problems in the City. Baseline report at ___.
The Revised DEIR appears to rely on Project-constructed detention basins to mitigate these significant drainage impacts. However, the Revised DEIR fails to provide any details about these detention facilities, whether the improvements are funded, and fails to offer performance standards for the operation of the facilities. See Sacramento Old City Ass’n v. City Council, 229 Cal.App.3d 1011 (1991) (EIR must include specific performance criteria for mitigation known at the time of Project approval). Here, a “not net increase in peak flows” performance standard is appropriate when mitigating increased runoff potential from a new development that drains to an area that already experiences flooding problems. Baseline Report at ___.
Because the Revised DEIR fails to adequately describe the proposed detention facilities, it also overlooks secondary impacts that may result from construction of these facilities. For example, where will these facilities be located and what biologic and aesthetic impacts will they have? How does the City plan to conduct periodic sediment removal and ensure safe access to the detention basins? The public and decisionmakers have a right to complete information and analysis of potential impacts from these mitigation measures.
E. The Revised DEIR and the Water Assessment and Water Verification Report Both Fail to Adequately Analyze Water Supply Impacts.
California courts have repeatedly held that EIRs for development projects are fatally deficient if they do not identify a water supply source and include a detailed analysis of utilizing that source. See, e.g., Stanislaus Natural Heritage Project v. County of Stanislaus, 48 Cal.App.4th at 192 (invalidating EIR where “[t]he County knew neither the source of the water the Project would use beyond the first five years, nor what significant environmental effects might be expected when the as yet unknown water sources (or sources) is ultimately used”); see also Santa Clarita Organization for Planning the Environment v. County of Los Angeles, 106 Cal.App.4th 715, 723 (2003) (invalidating EIR where agency assumed that State Water Project entitlements could deliver sufficient water, without analyzing whether the entitlements would actually be available in dry years). To be adequate, the EIR must include sufficient detail to enable those who did not participate in its preparation to understand and “meaningfully” consider the issues raised by the proposed project. Dry Creek Citizens Coalition v. County of Tulare, 70 Cal.App.4th 20, 25 (1999). Although the RDEIR identifies the proposed source of water supply – domestic groundwater supplies and Municipal Water District (“MWD”)-supplied water – it falls far short of meeting these legal requirements in that it relies on outdated data to complete its projects and completely overlooks water supply shortages that have affected Orange County’s groundwater and surface water supplies.
The RDEIR concludes that water supply impacts will be less than significant based on the Water Assessment and Water Verification Report’s (“WAVR”) conclusion that adequate water is available to serve the Project. However, the WAVR relies on outdated data, rendering all of its projections of adequate water supply suspect. Specifically, the WAVR projects water supplies for 2005-25 based on water supply data provided only through Fiscal Year 2000-01. Similarly, the water demand data does not extend past 2002-03. The WAVR also appears to rely on data in the 2000 MWD Regional Urban Water Management Plan rather than relying on the more recent 2005 Plan, which corrects some of the erroneous assumptions made in the 2000 MWD Plan and presents a more accurate portrayal of the region’s water supply based on recent drought years.
As a result of its reliance on outdated data, the WAVR’s projections do not take into account the region’s recent drought conditions. For instance, in April 2003, the Orange County Water District (“OWCD”) took several important steps to counteract four years of drought in Southern California and increased groundwater use over the last few years. By adopting Resolution 03-4-38, OCWD made a finding that its groundwater basin is overdrafted by 414,000 acre-feet. See Resolution No. 03-4-38, Finding No. 5, attached as Exhibit ___. The Board subsequently adopted Resolution 03-4-40, which reduced the City’s groundwater basin production percentage from 75 percent to 66 percent of total usage. See Resolution No. 03-4-40, Section 1(g), attached as Exhibit ___. In addition, OCWD has recognized that single years of high rainfall are insufficient to counteract the ongoing drought situation. See OCWD, Hydroperspectives Headlines Vol. III, Issue 3 (Fall 2004) at 3, attached as Exhibit ___. The DEIR and WAVR, however, ignore the 2003 actions of the OWCD and blithely assume that OCWD can continue to provide over 75 percent of its water supply from local wells as it did in 2002-03. See RDEIR at 4.8-3.
Because the WAVR relies on outdated data, it also fails to provide current information about MWD’s Colorado River supplies. According to the RDEIR and WAVR, the City receives approximately 25 percent of its water from MWD. However, in 2003, the U.S. Bureau of Reclamation reduced California’s allocation from the Colorado River because California was not adequately conserving water in accordance with a 70-year old historic agreement. See Exhibit ___ (March 2, 2003 article by Gale Norton, Secretary of the Interior). The allocation from the Colorado River to California could be further cut if drought conditions continue or if climate changes exacerbate these drought conditions. Indeed, the OCWD has publicly recognized that the Colorado River is entering a dry period that may last for the next 20 years. See OCWD, Waterlines 2003 (August 2003) (citing August 20, 2003 article in the Los Angeles Times), attached as Exhibit ___. The WAVR does not discuss these recent reductions and potential reductions in MWD supply because its projections are based on pre-2003 conditions. Clearly, the availability of water to serve the Project is not as readily available as the RDEIR implies.
The WAVR also fails to provide adequate information about the potential for increased overdrafting and seawater intrusion. The WAVR states that the basin from which the City of Fullerton receives approximately 25 percent of its water was identified by the California Department of Water Resources as over-drafted in 1975 and 1980. Similarly, although not disclosed in the WAVR, the OWCD revealed in 2003 that its basin is overdrafted by 414,000 acre-feet. See Exhibit ___. The OCWD’s groundwater basin is also unquestionably experiencing significant seawater intrusion due to the overdraft conditions. See OCWD, Hydrospectives Headlines Vol. 11, No. 11 (Spring 2003), attached as Exhibit __. The WAVR goes on to say that efforts are being undertaken to eliminate long-term overdraft, which are described in the OCWD 2020 Master Plan Report. However, the document does not provide any information regarding these efforts to reduce overdraft or attach a complete copy of the report. See Emmington v. Solano County, 195 Cal.App.3d 491, 502-03 (1987) (outside reports do not support environmental document where they are not adequately summarized and analyzed). Nor does the document explain what steps will be taken to prevent seawater intrusion.
In sum, the RDEIR’s water supply analysis fails to support its conclusion that the Project would cause no significant impacts to the already existing systemwide shortfalls. The RDEIR must be revised again based on current data to address Orange County’s drought situation and the effect of the Project on current overdraft conditions.
F. The Revised DEIR Fails to Adequately Identify, Analyze, and Mitigate the Project’s Noise Impacts
While the Revised DEIR acknowledges that the proposed Project will substantially increase the noise levels in and around the Project area, the analysis and proposed mitigation measures for construction and operational noise impacts are wholly inadequate for several reasons.
First, the existing noise monitoring does not include all affected receptors. For example, there are no receptors identified south of the Project site. See Exhibit 4.3.2. The RDEIR must identify the number of sensitive receptors affected and the degree that they would be affected.
Second, the Revised DEIR utilizes improper significance criteria. To begin, the RDEIR fails to adequately consider “single event” noise impacts from the Project. Instead, significance criteria state impacts in terms of increase over identified CNEL levels in the City’s General Plan. RDEIR at 4.3-13. These levels are misleading because CNEL only accounts for the average noise level, it does not represent peak highs over short periods. Thus, while single event noise levels in and around homes, open space, and businesses near West Coyote Hills may be high, CNEL levels do not accurately reflect the magnitude of those events. For example, the Revised DEIR concludes that, although single event truck noises may be as high as 86 dBA at 50 feet, short-term construction impacts from transport of workers and equipment would be less than significant because, when averaged over a 24-hour period, the increase in noise would be less than 1 dBA. RDEIR at 4.3-14.
This type of analysis has been rejected by California courts because impacted residents do not hear noise averages, they hear single events. See Berkeley Keep Jets Over the Bay Committee v. City of Oakland, 91 Cal.App.4th 1344, 1382 (2001). Single event noise levels have been shown to be likely to result in sleep disruption and speech interference, and heightened levels of stress and annoyance. In the Berkeley Keep Jets case, the EIR contained similar noise significance criteria to the RDEIR, stating that noise impacts “would only be significant if over a 24‑hour period, the average noise levels either (1) increased by more than 1.5 CNEL in those areas already experiencing noise levels greater than 65 CNEL, or (2) caused the noise levels in an area to exceed 66.5 CNEL.” Id. at 1373. Noting that “sound exposure level [SEL] has been found to be the most appropriate and useful descriptor for most types of single event sounds,” the court held that the Port must prepare a supplementary noise analysis calculating the impacts single‑event sounds. Id. at 1382. Therefore, the Revised DEIR must analyze the impacts of single event construction noise on sleep, speech, stress and annoyance levels, and analyze adequate measures to mitigate those impacts.
Additionally, the RDEIR improperly asserts that if noise levels exceed the 60 dBA CNEL standard outlined in the City’s General Plan, impacts will only be considered significant if the Project will contribute 3 dBA or greater. RDEIR at 4.3-13. The proper question, however, is not the relative amount of noise resulting from the Project, but “whether any additional amount of [] noise should be considered significant . . .” in light of existing conditions. Los Angeles Unified School District v. City of Los Angeles, 58 Cal.App.4th 1019, 1025-26 (1997) (emphasis added). Further, when the noise from Project operations would not cause the overall noise level to exceed the 60 dBA CNEL standard outlined in the General Plan, the document only deems significant increases of 5 dBA or more. Revised DEIR at 4.3-13. The City provides no justification for its approach of automatically deeming all such increases of less than 5 dBA insignificant. Moreover, in some places the Revised DEIR does not even appear to use that standard, finding several noise impacts to be insignificant simply because they are below 60 dBA CNEL (without analyzing the addition of any noise by the Project to ambient levels). See, e.g., RDEIR at 4.3-17 to 4.3-18 (finding traffic generation in certain areas to be less than significant where the noise levels would be less than 60 dBA CNEL). However, compliance with the general plan standard does not necessarily mean noise impacts are insignificant. Oro Fino Gold Mining Corporation v. County of El Dorado, 225 Cal.App.3d 872, 881-82 (1990).
Accordingly, in order to accurately evaluate the effects of the Project on nearby residents and businesses, the RDEIR must utilize thresholds of significance that are based on both single event noise and overall noise levels after full Project implementation.
Third, in addition to the analysis being flawed by a reliance on improper thresholds of significance, the noise analysis in the RDEIR is missing several other crucial pieces of information. In terms of short-term construction impacts, the analysis lacks an adequate description of the construction noise environment. It is not sufficient to merely describe general noise levels associated with construction equipment. Rather, given the close proximity of residences, businesses, and open space, specific noise levels should be calculated (modeled) and analyzed at various locations. Further, the RDEIR fails to describe or analyze the construction noise impacts in terms of the total duration of construction. The Traffic section of the RDEIR states that the construction schedule is anticipated to last five years. RDEIR at 4.4-21. The Noise section of the RDEIR should state this fact and analyze the impacts accordingly.
In terms of long-term operational impacts, the Revised DEIR fails to include an analysis of any noise impacts to be generated in conjunction with the new Gilbert Street bridge. These impacts should be included in a recirculated DEIR. Further, while the Revised DEIR attempts to generally assess the long-term noise impacts on residences, it fails to analyze the noise impacts on other uses, such as open space and businesses. The impacts to users of the Robert E. Ward Nature Preserve may be especially significant given that any increase in noise levels in a natural setting such as the Nature Preserve would be unacceptable in that one of the purposes of open space is to provide urban users access to spaces away from the noise and traffic of urban life. The sounds of motorized vehicles – something that can ruin anyone’s outdoor recreation – carry far from the road. Vehicular noise – like second-hand smoke – is indiscriminating; there would be no way to escape the noise except to leave the park altogether.
Finally, there is no evidence that the mitigation measures proposed for construction- and operational-related noise will reduce the Project’s impacts to a less than significant level, as claimed by the Revised DEIR. For example, the RDEIR proposes to limit construction activities to between 7:00 a.m. and 8:00 p.m. on weekends and Saturdays, as required by the City of Fullerton, and suggests that some nighttime construction is acceptable. RDEIR at 4.3-29 (MM 4.3-1a). However, these times do not correspond in any way with residential activity patterns. To prevent unbearable noise impacts on nearby residents, construction activities must be limited to between 9:00 a.m. and 6:00 p.m. No construction activities should take place at night. Further, these hours do not address impacts to open space users and local businesses.
The RDEIR also requires construction equipment to be equipped with “properly operating mufflers, air intake silencers, and engine shrouds no less effective than as originally equipped.” RDEIR at 4.3-29 (emphasis added). The mitigation, however, does not ensure that noise impacts will be reduced to a less than significant level, nor does it ensure that such technology is the best at controlling noise. The Revised DEIR should consider such a condition and should analyze whether the best available technology would reduce the impacts to a less than significant level. Further, while the Revised DEIR states that there shall be a contact person at the site in the event the City receives noise complaints, it does not suggest a protocol to be followed in the event such a call is received. In sum, there is simply no evidence that construction noise impacts will be mitigated to a less-than-significant level.
G. The Revised DEIR Fails to Analyze and Disclose Significant Aesthetic Impacts of the Project.
The proposed 760-unit residential subdivision will drastically alter the visual landscape of the West Coyote Hills. The Project will cut and fill large swaths of hillside and excavate 3.7 million cubic yards of soil. The RDEIR acknowledges that the Project will result in the loss of hundreds of acres of open space and create an excessively unified and homogeneous landscape, resulting in an almost complete overshadowing of the once-visible hillsides and ridgeline contours. RDEIR at 4.11-19. Despite this bleak outlook, based on the landscaping and design features of the Project, the RDEIR concludes that the Project’s aesthetic impacts will be less than significant. As we stated in our 2003 letter, the DEIR’s reliance on landscaping and design features as mitigation fails to reduce the significant topographic impacts of the Project to a level of insignificance. Furthermore, the DEIR’s conclusion that aesthetic impacts will be insignificant flies in the face of established CEQA law.
Under CEQA, it is the state’s policy to “[t]ake all action necessary to provide the people of this state with . . . enjoyment of aesthetic, natural, scenic, and historic environmental qualities.” Pub. Res. Code § 21001(b) (emphasis added). “A substantial negative effect of a project on view and other features of beauty could constitute a significant impact environmental under CEQA.” Ocean View Estates Homeowners Assn., Inc. v. Montecito Water District, 116 Cal.App.4th 396, 401 (2004). No special expertise is required to demonstrate that the Project will result in significant aesthetic impacts. Ocean View Estates, 116 Cal.App.4th at 402 (“Opinions that the [project] will not be aesthetically pleasing is not the special purview of experts.”); The Pocket Protectors v. City of Sacramento, 124 Cal.App.4th 903, 937 (2005) (“[N]o special expertise is required on this topic.”)
As explained by the court in Quail Botanical Gardens Foundation, Inc. v. City of Encinitas, 29 Cal.App.4th 1597, 1606 (1994), it is “self-evident” that replacing open space with a subdivision will have an adverse effect upon “views and the beauty of the setting.” Instead of addressing and analyzing the Project’s visual effects, the Revised DEIR employs contorted logic to mask its clear impacts. For example, the RDEIR states that “development within the West Coyote Hills site will be visible from vantages within the active recreation areas of Ralph B. Clark Regional Park.” RDEIR at 4.11-23. However, the RDEIR concludes that the impacts would be less than significant because “such views will be middleground and background views.” Id. The RDEIR simply provides no basis for its assertions. Why are impacts to middleground and background views less significant than immediate views? Moreover, the RDEIR claims that no “long-distance” views from the Park “will be available.” Id. at 4.11-21. What does this mean? What is the difference between long-distance views and background views? Based on the RDEIR’s definition of background views (p. 4.11-2), there appears to be no difference and therefore no basis for discounting the significance of “background” views.
Furthermore, the RDEIR fails to account for significant visual impacts to views from public roadways. The Fullerton General Plan designates Rosecrans Avenue, Euclid Street and Gilbert Street as scenic corridors. Yet the RDEIR fails to mitigate the Project’s major topographic impacts, and instead relies on landscaping and design guidelines to conclude that impacts to these scenic corridors will be insignificant. Furthermore, it is clear from the visual renderings that visual impacts will be significant. As shown on Exhibit 4.11-11, the Project will change the existing unobstructed view of a hillside from Rosecrans Avenue into a view of a strip mall. Similarly, Exhibit 4.11-13 shows that the natural ridgeline visible from Gilbert Street will be transformed into a view of a row of houses. Thus, the RDEIR’s conclusion that the Project’s impact on visual resources would be less than significant cannot be sustained.
In addition, the RDEIR fails to adequately analyze and mitigate potential significant visual impacts associated with citing wireless towers on the West Coyote Hills property. First, the document fails to explain where these towers will be allowed. The RDEIR states, without any analysis whatsoever, that communications facilities will be a permitted use in Open Space Areas A, B, and C of the Draft Specific Plan. The Specific Plan Amendment, on the other hand, specifies that communication facilities will be allowed as permitted uses only in Open Space Area B. These wireless towers are often sited on ridgelines and, at their usual height of 120 feet, are visible from miles away. The Revised DEIR contains no analysis of the potential visual impacts of these towers, yet states that any potential impacts from communication towers will be mitigated to a level of insignificance by an undefined “design review” process. Revised DEIR at 4.11-31 (MM 4.11-2). This so-called mitigation measure fails to comply with CEQA’s requirement that the measures must include specific performance criteria for mitigation known at the time of project approval; the formulation of mitigation measures cannot be deferred until some future time. Sacramento Old City Ass’n v. City Council, 229 Cal.App.3d 1011 (1991); Sundstrom, 202 Cal.App.3d at 306-07. The Revised DEIR should explain what this design review process will entail and how it will achieve mitigation to a level of less-than-significant.
Moreover, the RDEIR’s conclusion that the Project’s visual impacts would be less than significant directly contravenes Specific and General Plan policies and, as a result, triggers the RDEIR’s own thresholds of significance. See RDEIR at 4.11-9. Specifically the Coyote Hills West Master Specific Plan 2-A explains that “of primary importance are the visual vistas of the hills as seen from below and that care shall be taken to ensure that these hills are improved to provide as naturalistic a setting as possible for the many observers who view them each day.” Id. at 4.11-10 (emphasis in original). Similarly, the Resource Management Element of the Fullerton General Plan is designed to protect views to and from major topographic features and scenic hillside areas. Id. at 4.11-29. For example, the General Plan states that the “Coyote Hills in the northern section of Fullerton . . . have become distinctive settings particular to the community.” Resource Management Element at RM-22. Despite this unambiguous policy guidance, the DEIR merely proposes “landscaping” to reduce the visual effects from the extensive grading to a level of less than significant. See RDEIR at 4.11-19 and 4.11-27. This conclusion defies reason because it fails to explain how landscaping can reduce the topographic effects of the Project in conformance with the Master Specific Plan 2-A and the General Plan. In sum, the Revised DEIR’s should include additional mitigation measures and/or an alternative that redesigns the Project to avoid these significant visual impacts.
H. The Revised DEIR Fails to Adequately Disclose and Analyze the Project’s Traffic Impacts.
The RDEIR does not adequately address our prior comments regarding the Project’s traffic impacts or correct the deficiencies in the DEIR’s traffic analysis. First, the RDEIR’s traffic analysis remains too narrow in both its geographic and substantive scope. As to the geographic scope, as noted in our prior comment letter, the analysis must be expanded to include regional arterials and freeways, including the Project’s impact on the 57, 5 and 91 freeways. Although the RDEIR remains silent on the subject, residents have expressed concerns that these freeways are extraordinarily congested in the morning and afternoon peak hours, and that the Project could exacerbate that congestion.
Similarly, despite our earlier comments, the RDEIR’s substantive scope has not been improved. The document still relies exclusively on an intersection capacity utilization analysis and intersection delay analysis. As explained previously, these types of intersection analyses tell only part of the story – whether an intersection has enough physical capacity to accommodate vehicles. The RDEIR should also include a more qualitative analysis of traffic impacts on the community, which could be accomplished by a “traffic infusion on residential” (“TIRE”) procedure which considers the qualitative impacts upon neighborhood streets.
Further, where the intersection capacity utilization analysis is used, the thresholds of significance should not be so narrowly defined. The RDEIR currently bases its thresholds solely on the standards in the Congestion Management Plan and General Plan, which determine significance based on the level of service at a specified intersection and whether the Project increases traffic a certain percentage over given levels. The City’s reliance on these thresholds allowed it to conclude that the Project would not have a significant traffic impact, even where the Project caused an intersection to move from an “acceptable” to an “unacceptable” level of service, because the Project did not increase the traffic over a certain percentage. See RDEIR at 4.2-31. However, compliance with a certain standard does not necessarily mean traffic impacts are insignificant. See Oro Fino Gold Mining Corporation v. County of El Dorado, 225 Cal. App. 872, 881-82 (1990). Nor does CEQA countenance finding significant impacts solely when the Project contributes an arbitrary increase over existing traffic levels. See Los Angeles Unified School District v. City of Los Angeles, 58 Cal.App.4th 1019, 1025-26 (1997). Rather, any worsening of traffic impacts could be considered a significant impact depending on the Project setting. See id. Where, as here, the Project occurs in a neighborhood setting where residents are already faced with traffic problems, any worsening of traffic impacts should be considered a significant impact.
Moreover, as noted in the RDEIR, other cities in the area have different thresholds of significance. See RDEIR at 4.2-11 (showing that the Cities of La Habra and Buena Park have more stringent significance criteria than does Fullerton). At a minimum, each intersection analyzed in the RDEIR should be evaluated on the basis of the criteria that apply within the city that the intersection is located. Applying those thresholds would change the conclusions in the RDEIR to find a significant traffic impact for two intersections. If the City of La Habra’s standards are applied (which consider any increase to a LOS E or F intersection significant), then a significant impact would result at the intersection of Imperial Highway and Beach Boulevard for both 2007 and 2025. Likewise, the City of Buena Park considers an impact to occur if the ICU increases by 0.01 or greater which currently or in the future would operate at LOS E or F. With this criterion, a significant impact would result for the intersection of Beach Boulevard/Malvern Avenue for the 2025 analysis.
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