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Home My WebLink About6.3 Attachment D COMMENTS ON MITIGATED NEGATIVE DECLARATION EXHIBIT .lL \-"2.. ~-.,s G..,3 .. ." "~"'OlO 28...51J .......--...~... \".."\.....11\.."'1.:. '..J .I. .I..M"-;I JT "'Z I'm WtlSC'l, Go--=mar DEPARTMENT Of TRANSPORTATION @.~."" - ". - '~~"7'" ~ ~. JA :.lUOO ,l.W-.'-lD, CA 946z:J..0050 December 2311994 (SiO) T'~ roo (.510) ~ ALA-580-18.90 SCH#94113020 ALA58().!-50 Ms. Jeri Ram City of Dublin 100 Civic Plaza Dubli.Tlf c...A.. ,.94568 RE: NEGATIVE DECLAI',,-A..ll0N FOR - Santa Rita Commercial Center (rezone 75+ acres from Planned Deve1ocme.:.."lt-Business Park/Industrial to a S:c....'ldard ~ Planned Development. Tne project 'will also include a Site Development Review and. TE-Tltative Parcel M2p. This project has a SpecL..qc Pl2..!."l. G...:."lQ Ge..lleral Plac'1. Desigrtation of Ge.Tle.ral Corru.ner~;:.l The proposed Pl2..!."1.!"~ed D 1 .. O' t" """'0000 r .al eve.lOprne::.t wo:.:ld. 2..llOV'-l :Lor 2...:.:' tiU, square :::oot commero" center which may i.:.tclv.de retail shops, offices, movie theaters and restal.1.c"""2...Tlts among otlter uses. Dear :M:s. Ram: Than:.1<. you for incl-..:.cling the C:> 1';ornia State Depe.rtrnent of T!2..!.t.Spo.!. ~c.:icm in the revie;..... process for i.-J..5 proposcl. \Ve have reviewed. the above refe:re!ic2d document and fo!>v2..!Q the follo."d-,-i.~ CO!Il.ITIents. .... There are two possfbie futu..:'e projects in the vicinity of this proposed deve1opme...Tlt that shoUld be ta..~en ir.:o consideration. The first project is t.......e Bay Area Rapid Tra...-..sit eBl- RT) District e,xtc""lSion to Live.rrnore which '''lill uT"iii7e the media.."l or 1-580. 'vI.{ e rECOI!.1!!'.e,nd that the B...;RT District review &15 proposed development. Tb.e s2Cor..d project is f-:.e reconstruction of the 1-580/1-680 L'1.terchange, whic..."'-t is ceyond {he MeaSil!e B project curre:.i.tly in, the e:1. y ~orr':1~-"t2.l procesS. vV~l1.en bct...1L of these proposed p::ojects are constructed, the e..xisting State's right-of-way may not be adequate a..."lU may require acquisition or 2.d~tion21 right-of vlay. ~ . A Caltr2...1lS' F:l.croac.."'rtment Permit \vill be required for any work done \\'ithin the State right-of-way. Before fu'l encro2.c-merd: perI!.lit can be issued, a completed. aiJplication, final errvironmental doC'~entation and five (5) sets of pla.:."15 DUst be ~ . ~J.b6itted to the follo1-\-2:.1g contact person: . G. J. Barravini, Chief Caltra..T15 District 4 1-Iaint2!ta-p.ce Semces arr.a Permits Branch PD. Box 23660 Oa.ldar.c., C-4. 94623-0660 . . -. ~,~-_..~..~_.". ~,--~". -_...-_.._~ ~ . .... .. .I:. .. . - I.. "". ~ Rami ALA580450 December 23, 1994 Page 2 .....-. - .. Should you haY"e any questions regarding t'rris letter, please contact NorE:e...Tl. Rodriguez of my ~Ff at (510) 286--6312 cc }l;1,~ f'1-,;ria-r-;...; c'f;:.f::> Cl~.L;.LG"r.O"'::':: l"flll\..- \...,.....J.~ 1...1,..:../ ""'''-''-'' ~" _........... Craig Goldblatt, :tvITC Patricia PerrY, ABAG Dennis Fay, "'j.]~-ned2. County C?"L~ '., .'" , ;,........ '. Sincerely, JOE BROVv"'N"E District Director I (j ~~~ P.HII.L1P BADAL District Branch Chief IGR/CEQ.-\ .,R"'.E - .. - ( y N o L D ~ &. ~V~ ~ -V o 1\. v vv y' 1 ". December 14, 1994 The Honorable Mayor and Members of the City Council Members of the Planning Commission City of Dublin Dublin Civic'center 100 Civic Plaza Dublin, CA 94568 RE: Santa Rita Commercial Center (P A 94-001) Ladies and Gentlemen: Reynolds & Brown is the developer and o\\'ner of a 60 acre mLxed use business park at Hopyard and Interstate 580 in Pleasanton and in addition has purchased some properties in the Hacienda Business Park. We have been actively involved in the master planning of the North Pleasanton area since 1979 and are a panicipam 1...-1 the :\onh Pieasanton L'11provement District. In the past five years, \ve have developed a number of p;-omotionalJregional shopping centers in the East Bay. Those developers that are local understa.:.1C L'Ie sensitive bala.'lce between traffic cirC'da~ion al".d a workable envi.ronment with the citize:;s. \Ve understand that the Steering COl7'..IT'.it:e:: of the North Pleasanton Improvement District is filing an objection to the development apprcval and negative declaration on this property. We have not been able to review in detail the !ener and anacbments and therefore felt it a?propriate to state our concerns in a separate letter. Our concerns fall under three main areas. TRAFFIC CrRCULATI0~: We believe that the first criteria of any development is its accesS points. the number of cpticDs allowed for the customer, and the elimi.iation of bottlenecks in the site plan. The site plan that we have reviewed will create sig.Tlificant traffic congestion at the Hacienda interchange and the nearby intersection. There is effectively only one access point to t..'1lis project: Jn a scale of ~gnitude. this development ""in be over five times the size of our Marina Square center in 'San Leandro. 12\X1 ConcorJ A,.tl\\Je Suit~ 200 C,)nc\)rd, CA 94520 ~tJiiin; AddreSS P.O. Bo:< 4057 Ccnc:ord. (:..l, 9.:5:;4-4057 10 :=:'~d t" H/:O~=:=: ~ ,:~Ct t.!."~.:: ~:~~ lE.:3'3-(t1S S;:11 ~SSI!~:,;:~ .' . . , ~~ ~#~ v~>> V~" Honorable Mayor &. Members of the City Council December 14, 1994 Page 2 T affi;\' I' Po n a,.I~l. 't.. ~1"~__I"'.r._l__ =- .- __1:....;...~1 :rr'llD. C~~"l~ ,..,,;.... r c ..,ircu atIon 1S a maner or e:1gm..... Ulg, uu~ \..U~IUlQ.:."'1 1~ U }Iv""...... ....J__. ........-.- u_.:. development not adequately handle its uaffic flow, your jurisdiction and the City of Pleasanton will be affected. The citize:ls ",ill have the right to ask why did this happen a.:.id shouldn't future development be cunailed until the problem is solved. As Nor.:h Pleasamon properties must fund assessments for w.1.e next twenty five years, this is an option which is unacceptable. Our conunitrnent must be for well-planned, multi faceted circulation systems that are in place ""ith the development. Our push for both the Dublin hook ramps into downtown Dublin and the retention of the Hopyard omit.11p rise above particular projects and to this hig.her goal. DEVELOP~fENT FAIR SHARE: \Ve are very concerned by the expeditious process fo:- putting a tr2J.""TIc fee in place, v"ithou~ thorough STudy and comment. The only pe:-ceivec reason is to be able to approve this project and pro..-ide a cap for the County Foper:ies. \V'ni.le this may be in Dubli.t1'S best i..:..erest, our concern is that the real cost is not knO\'TD for the futu:-e impro.....e:r.ents that ,,'il! be required or for the reimbursement of exist!r:g beneficial imorovements that have bee:1 installed by Ple.asanton. The Heindel s~ud\' . ' commissioned by your City detalls 2..:. approach to this solution which is apparently not intended to be foUc\ved. Our conce;n is that tjljs development fulfill its full fair share for the improvements necessitated by the project and be pa.--:. of the solution for the area. T :o.ke your time to thin..l.; about this careriJUy. as a project of this magnitude will have lasting impacts which may be difficult to mitigate at a later date. RETIvfBl)RSE~{E"ST FOR DUBL!):" BOULEY ARQ: The City of Dublin has agreed to reimburse P lea santon for the exte:.ision of Dublin Boulevard. Our understa...!ding is tn::.. this payment of series of paymems is se~ond in line only to BART. Development will kick off the requirement for repayment. Please carefully study what fees you are collecting 2!i.O the ability to fi.1lfill your obligations. On the surface ,the proposed fee ,is substantially less th;..'1 surrounding areas on a per square foot ofla.Tld basis. As we collectively try to work together to pursue regional traffic solutions and potential funding sources, all of the parties will need to adequa:rely ha...:cle its share. In a push to conclude the Ccumy land agreement and to respond to the desire of the develcperto get going, we are very concerned that a fair share is nOt be:.ng paid and Dublin will lose one avenue for its costs in the future. :::0 ~::It:'d ~ .j( ...![:;=~:: ~=, ~ -:c :--;,,"'.2= S::: S Tt.::,'3-Cl TS E;:1T t~~~!~:,":~ ~; ....~ .. "'" . -,".' .! ~'(y ~~ ~~ ~ Honorable ?v1ayor & Members of the City Council December 14, 1994 Page 3 Our comments are not directed at the use or the developmem. Our overriding concern is to continue to see a logical and long range solution for the traffic circulation in this area. The Tn Valley can withstand competition, but not at the expense of the master plan which the citizens have accepted is soh-ing the issues as we go. To come back la~er and apologize or try to f.., the problem later \'will be unacceptable. We believe that the foregoing impacts should be studied and considered seriously to determine whether or not they may ultimately have a significant effect on the environment. It is conceivable to us that follow-ing careful analysis a ~egative Declaration could be drafted \-vith appropriate conditions of approval to mitigate the adverse effects of the foregoing impacts. We trust that the City is proceeding accordingly a11d lv-ill carefully review the development in light ortnese cone ems and make the appropriate findings. Thank you for your consideration of these cornments. Sincerely, REYNOLDS & BROW?\' cy6 --U Thomas K. Terrill :;-c, ~~Itid i if(IC,::.::: :.: :-"D I.:,.:::::: s::: 1; ~::,:::'=-O IS ~;:' . L ~ --_.-~._- -, .' . . ,:".:, :...... :. -" :' '- " -,JT " ,C (,i-' .f! December 22, 1994 !!.ECEIYED DEC221994 ,P~ <'.. ~.~ The Honorable Mayor and Members of the City Council and Planning commission city of Dublin Dublin civic Center 100 civic Plaza Dublin, CA 94568 r'-", '~Il"( 0;: DU"lJ'T I.:~", ("~ ~/~j ~JL.~~L, Re: Santa Rita Commercial Center; Application for Rezoning and Proposed Neaative Declaration (PA 94-001) Ladies and Gentlemen: The undersigned are owners of properties and businesses in the city of Pleasanton. More specifically, we collectively own more than 500 acres of land in North Pleasanton which is part of the North Pleasanton Improvement District ("NPID"). As you probably know, the NPID has funded, among other things, the freeway interchange construction and improvement projects along 1-580 at Hopyard/Dougherty, Hacienda and Santa Rita/Tassajara. All of us have been actively involved in land use planning and policy issues in Pleasanton in coonection with the development and operation of our properties and businesses. As such, we have a critical interest in the integrity of the land use regulations in Pleasanton, and that such regulations ensure a viable, liveable and economically successful community. Because of the close proximity of the cities in the Tri-Valley, that interest extends to the impacts of development in adjacent communities, such as Dublin. For this reason, we are keenly interested in the impacts of development projects which will occur under the Eastern Dublin Specific Plan and the implementation of the land use planning policies contained in that Specific Plan. The first project which has been proposed under that Specific Plan is Homart's Santa Rita Commercial Center, which is to be located on approximately 75 acres of land, bounded by 1-580, Hacienda Drive and Dublin Boulevard. In order to implement this project, Homart proposes to rezone th~ property. from Planned Development - Business Park/Industrial (low coverage) to Planned Development General Commercial. However, as discussed in the attached memorandum prepared by Cassidy and Verges, it is very difficult to conduct a meaningful review of this project because the description of the project contained in the Initial Study/Amended Negative Declaration is inadequate. For instance, we understand that the Homart project will also require other project approvals (such as SUbdivision/tentative map approval, design review approval and a development agreement) which are not ";- ", ": t l' ", December 22, 1994 Page 2 described in any detail in the Initial Study/Amended Negative Declaration. We believe that the other NPID property owners will share our concern once they better understand the scope of this project, which as previously noted is difficult to ascertain from the materials which are currently available. Naturally, this first project up for approval in Eastern Dublin poses the issue of how Dublin intends to fulfill the planning and policy commitments which it made in its Eastern Dublin Specific Plan. In particular, those policies include assurance for the provision of sufficient infrastructure (including transportation, water and sewer) to serve buildout in the Eastern Dublin area under the Eastern Dublin Specific Plan. We are concerned, however, that the Homart approvals may proceed before these implementation measures are identified and in place to assure that the impacts of development in Eastern Dublin have been adequately handled, both from an environmental standpoint and under the enunciated policies in the Specific Plan. As you know, Pleasanton has made a conscious effort to assure sufficient infrastructure as development occurred in North Pleasanton. For example, as previously mentioned, the NPID has funded the construction or improvement of several interchanges which benefit both Pleasanton and Dublin in order to acco~modate development and growth in both Pleasanton and Dublin. Dublin is a beneficiary of that infrastructure. We want to assure that Dublin lives up to these responsibilities as it implements its Specific Plan policies and appropriate mitigation measures for the impacts of projects developed in Eastern Dublin. In reviewing Homart's application for rezoning and the Initial study for the project (produced under CEQA) , we are very concerned that these responsibilities have not been fulfilled. In order to ensure that you are fully informed on these issues, we have retained the firm or Cassidy & Verges to review these materials and prepare comments on our behalf. We enclose a copy of those comments with this letter. Ive hope that you will respond to these comments in the spirit in which they are given: to ensure the integrity of the land use approval process in Dublin as we have assured its attainment in Pleasanton. We therefore ask that you review these comments, respond to them, and implement the appropriate solutions through additional environmental review, documentation and conditions of approval to implement required Specific Plan pOlicies and mitigate adverse project impacts, before the Homart project is approved by Homart's rezoning proposal. ..'~ ~ '. ',r ,.r December 22, 1994 Page 3 If you have any questions regarding our comments or need additional information, you should not hesitate to call Stephen K. Cassidy at the law offices of cassidy & Verges, at 415-788- 2020. We look forward to the public hearing process on this project. Our representatives will be available at those hearings to respond to your questions and concerns. Respectfully submitted, Callahan Property Company Chawin Property, Inc. East Bay B~nv Longs Drugs, Inc. Hacienda Motors Eerrera aIds GMC cadillac Scab Mozart Development Company Prudential Realty Group Rosewood Associates Spieker Properties Taubman Company 'J ' . ! CASSIDY & VERGES A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 20 CALIFORNIA STREET SUITE 500 SAN FRANCISCO, CAUFORNLA 94111 TELEPHONE (415) 738.2020 FACSIMilE (415) 788.2039 MEMORANDUM OF COMMENTS ON THE INITIAL STUDY/AMENDED NEGATIVE DECLARATION AND REZONING APPLICATION FOR THE SANTA RITA COMMERCIAL CENTER I. INTRODUCTION This Memorandum sets forth the initial comments of Pleasanton property owners identified in their December 22, 1994, letter to which this Memorandum is attached, on the Initial Study and Mitigated Negative Declaration (dated November 1994) (the "Initial study") and Amended Negative Declaration (dated November 22, 1994; the Initial Study and Amended Negative Declaration hereinafter collectively referred to as the "Negative Declaration"), and the proposed rezoning for the Santa Rita commercial Center (the "Project"), prepared by the city of Dublin (the "City"). For the reasons discussed below, we have concluded that the Negative Declaration is both substantively and legally inadequate, and the city should not adopt it, and that the rezoning (and related proposed Project approva~s) is inconsistent with the city's Eastern DUblin Specific Plan (the "Specific Plan"), and the city should not approve it at this time. Because of the voluminous material upon which the Negative Declaration and the proposed rezoning rely, and because we have not yet received all of the information necessary fully to review and l I. t ;1. to, critique the Negative Declaration and the Project, we reserve the right to submit additional material enlarging upon the comments contained in this Memorandum. To the extent required, we will do so before the Planning commission hearing now scheduled for January 3, 1995. In general, we conclude that in preparing the Negative Declaratibn, the city has failed to comply with the requirements of the California Environmental Quality Act (Pub. Res. Code 5 21000, et .2iill.; "CEQA"), the Guidelines for Implementation of CEQA (14 Cal. Code Regs. 5 15000, et seq.; the "CEQA Guidelinesll) and the city of Dublin Environmental Guidelines (the "city Environmental Guidelines"). An environmental impact report ("EIR") should be prepared in connection with the Project, because the Project will result in significant environmental impacts that were not specifically analyzed in the prog=am EIR for the Eastern Dublin General Plan Amendment and Specific Plan (the "specif ic plan EIR II) .1 fo.t a minimum, the Initial study is flawed because, although it identifies adverse environmental impacts of the Project, the explanatory text accompanying the Environmental Checklist Form in the Initial study contains an inadequate explanation and description of those potential adverse impacts and contains no substantial evidence that those adverse impacts are reduced to a point where clearly no significant effect on the environment would occur. Moreover, the city's files contain no record that revisions in the Project plans, or 1 The documents cornprlslng the Specific Plan EIR are specifically identified 'in the Initial study. -2- CASSIO,\HCMNEGCE.2\12-2Z-;' .. '. c . ,': , " proposals were made by, or agreed to by, the Project applicant, Homart community Centers (llHomart"), before the proposed Negative Declaration was released for public review, which revisions would avoid the effects or mitigate the effects of the Project to a point where clearly no significant effect on the environment would occur. Thus, even absent an EIR, there is no substantial evidence-in light of the whole record before the city that the Project may not have a significant effect on the environment.2 In addition to these deficiencies, the Project is also inconsistent with the goals and policies, and corresponding implementation measures, of the specific Plan. Because the California Planning and Zoning Law requires that, in order to approve the Project rezoning (and other Project approvals), the rezoning (and those approvals) must be consistent with the specific Plan, the city cannot approve the rezoning until these inconsistencies are remedied. 2 We note also that, to the extent the Negative Declaration and the city's action on the Project 'rezoning (and other subsequent project approvals) relies on the specific Plan EIR, the city's Notice of the public hearing on the rezoning application for the project was required to include a statement that this activity is within the scope of the program approved earlier and that the Specific Plan EIR adequately describes the activity for purposes of CEQA (CEQA Guidelines 515168(e)). The city's notices of public hearing do not contain this required statement and, therefore, fail adequately to apprise the public of the basis upon which the city has concluded that the Project will result in no adverse environmental impacts. . -3- C~SS[DY\HOMNEGDE.2\12-22.9~ <; II. LEGAL REQUIREMENTS FOR DETERMINING REQUIRED ENVIRONMENTAL REVIEW AND SPECIFIC PLAN CONSISTENCY A. Purpose, Intent and Application of CEOA 1. Purpose and Intent CEQA was adopted to ensure that public agency decisionmakers document and consider the environmental implications of their actions. See, Pub. Res. Code ~~ 21000, 21001. Since its enactment in 1970, california courts have required that CEQA be interpreted in such a manner lias to afford the fullest possible protection of the environment within the reasonable scope of the statutory language." Friends of Mammoth v. Board of Suoervisors, 8 Cal.3d 247, 259 (1972) i ~, also, citizens of Goleta Valley v. Board of Supervisors, 52 Cal.3d 553, 563-564 (1990) and Laurel Heiahts Improvement Association v. Recents of the Universitv of california, 47 Cal.3d 376, 390 (1988). The purpose of CEQA, and the environmental review process which it prescribes, is to ensure that the public and decisionmakers are fully informed with respect to the environmental effects of their actions. see, ~, Laurel Heiahts, supra, 47 Cal.3d at 390-392. 2. Apolication CEQA applies to "discretionary projects proposed to be carried out or approved by public agencies....1I Pub. Res. Code S 21080 (a). "Project" means the "whole of an action" which has the potential "for resulting in a physical change in the environment, directly or ultimately,..." and includes the enactment and amendment of zoning ordinances. CEQA Guidelines S 15378(a) (1) i ~, Stand Tallon princioles v. Shasta Union Hioh School District, 235 Cai. App. 3d 772, 781 (1991). "Approval" is -4- CASSIOY\HCMNE~CE.2\12.2:-;' ...... ;: not specifically defined in CEQA, but the CEQA Guidelines (~ 15352(a) and (b)) provide that "approval" encompasses: (a) .. .the decision by a public agency which commits the agency to a definite course of action in regard to a project intended to be carried out by a person. (b) with private projects, approval occurs upon the earliest commitment to issue or the issuance by the public agency of a discretionary contract, ..., lease, permit, license, certificate, or other entitlement for use of the project. See, Stand Tallon princinles v. Shasta Union Hiqh School District, suora, 235 Cal.App.3d 772, 781. B. Necessitv for Additional Environmental Review 1. Proper stage of Planning Process to Conduct Environmental Review; Role of Initial studv Environmental review must be conducted: as early as feasible in the planning process to enable environmental considerations to influence project program and design and yet late enough to provide meaningful information for environmental assessment. (CEQA Guidelines ~ 15004 (b) .) This requirement has been interpreted to mean that CEQA environmental review should take place at a meaningful point in the planning process, where enough information is known concerning environmental impacts, but where there is enough flexibility remaining to address the issues. Mount Sutro Defense Committee v. Reqents of the University of California, 77 Cal.App.3d 20, 34 (1978). The initial study is the starting point of environmental review under CEQA (CEQA Guidelines 515063; Sundstrom v. Countv of Mendocino, 202 Cal.App.3d 296,304-305 (1988)). As soon as a local agency determines that an initial study is necessary, it must also consult with any responsible agencies and trustee -5- C~SSIOY\HCMNEGCE.2\12-22'?' I. agencies regarding those agencies' recommendations as to whether an ErR or negative declaration should be prepared (Pub. Res. Code 521080.3(a); CEQA Guidelines 515063(g); Sundstrom, supra, 202 Cal.App.3d at 305). Since an important purpose of the initial study is to document the factual basis for finding that a project will not have a significant effect on the environment and that a negative "declaration may be utilized (CEQA Guidelines 515063(c) (5)), California courts have consistently held that the ini tial study "must '.' disclose the data or evidence upon which the person(s) conducting the study relied. 11 citizens Association For Sensible Development of BishoP Area v. County of Invo, 172 Cal.App.3d 151, 171 (1985); Sundstrom, supra, 202 Cal.App.3d at 305-308. In addition, while an initial study may utilize a checklist to determine the environmental effects of a project, the initial study must contain, at the least, a brief explanation to indicate that there is "sot1e evidence to support the entries. II liThe brief explanation may be either through a narrative or a reference to another information source [which] should include, where appropriate, a citation to the page or pages where the information is found. 11 (CEQA Guidelines 515063 (d) (3).) "Here conclusions simply provide no vehicle for judicial revie'N'. 11 (citizens Association For sensible Development of Bishop Area, supra, 172 Cal.App.3d at 171.) Finally, in connection with an initial study (and mitigation measures specified in an initial study and incorporated in a mitigated negative declaration or EIR), neither the required discussion and disclosure of data or evidence nor mitigation -6- CASS;DY\HCMNEGCE.2\12-22.S~ '. measures may entail the performance of a future study to determine the scope of adverse impacts or the content of appropriate mitigation measures to reduce those adverse impacts to a level of insignificance. By deferring environmental assessment to a future date, the conditions [of approval for the project] run counter to that , policy of CEQA which requires environmental review at the earliest feasible stage in the planning process. ,[citations]... A study conducted after approval of a project will inevitably have a diminished influence on decision-making. Even if the study is subject to administrative approval, it is analogous to the sort of post _.hoc rationalization of agency actions that has been repeatedly condemned in decisions construing CEQA. sundstrom v. County of Mendocino, 202 Cal.App.3d 296, 307 J1988) [citations omitted]. project. II CEQA Guidelines ~ 15168 (a) i see, also, city Environmental Guidelines ~2.4. Subsequent activities in a program must be reviewed against the program EIR to determine what additional environmental review, if any, is required. CEQA Guidelines ~ 15168(C). At that point, an initial study is prepared to determine whether to prepare a negative declaration or anEIR. CEQA Guidelines S15168(c) (4),(d). At a minimum, the lead agency must determine if the later activity would have eff,ects that were not examined in the program EIR, and must incorporate feasible mitigation measures and alternatives developed in the program EIR into subsequent actions in the program. CEQA Guidelines SS15162, 15168(c) (1), (2),(3). ....7- CASSIDY\HOMNEGDE.2\12-22.;' ". An ErR is required to be prepared where there is substantial evidence In the record supporting a fair argument that a project may have a significant effect on the environment. Pub. Res. Code 5 21082.2(a); CEQA Guidelines ~ 15064(a) (1); Quail Botanical Gardens Foundation. Inc. v citv of Encinitas, 29 Cal.App.4th 1597, 1602 (1994).3 A program EIR may be used in connection with later parts of the program to determine whether the later activity may have significant environmental effects. CEQA Guidelines ~ 15168(d) (1). It also may be used to focus an ErR determined to be required on the later activity to permit discussion of only those new effects not previously considered. CEQA Guidelines ~ 15168(d) (3). An EIR prepared for the later activity must include an analysis of cumulative impacts resulting from the later activity if those impacts are significant (CEQA Guidelines ~ 15130(a)), and, even if not significant, the EIR should explain upon what basis the conclusion that they are not significant was made (citizens to Preserve the Diai v. County of Ventura, 176 Cal.App.3d 421, 432 (1985)). In order to utilize the program EIR in connection with the later activity, any public 3 Under section 1.2 of the city Environmental Guidelines, an EIR is required to be prepared, in addition to circumstances where an EIR may be required by state. -statute, .when "the city determines that there is substantial 'evidence supporting a fair argument that the project may have a significant effect on the environment and which involve discretionary governmental action,.. . Determination of significant effect shall be made as provided in 5 15064 of the state CEQA Guidelines....In marginal cases where it is not clear whether there is substantial evidence that a project may have a significant effect on the environment, an EIR shall be prepared if there is serious public controversy over the environmental effects of a project. Controversy not related to an environmental issue does not require an EI?.II see, also, city Environmental Guidelines, sections 1.7(f) and 3.1(b). -8- CASSIDY\HCM~lEGDE.2\12-22.9: ....--. .M "_'___'_ ., notice required for the agency to carry out or approve the later activity must include a statement that the activity is within the scope of the earlier approved program and that the program EIR adequately describes the later activity for CEQA purposes. CEQA Guidelines 5 15168(e). A IImitigated negative declarationll may be adopted by a lead agency where an initial study identifies potentially significant environmental effects, but only if revisions to the project have been made and agreed to by the applicant prior to release of the negative declaration for public review that would avoid or mitigate the effects to a point IIwhere clearly no significant effect on the environment would occur,...and there is no substantial evidence in light of the whole record...that the project, as revised, may have a significant effect on the environment." Pub. Res. Code ~5 21064.5.4 and 21080(c) (2); Sundstrom, suora, 202 Ca1.App.3d at 306-307. The law does not allow revision of project plans after final adoption of a negative declaration to incorporate needed mitigation measures identified as necessary in or developed through post-project approval studies. Sundstrom, sUDra, 202 Cal.App.3d at 306-307. Under section 2.6 of the City Environmental Guidelines, where an initial study identifies significant environmental impacts, and 4 See, also, section 1.7 of the city Environmental Guidelines, which provides that a negative declaration shall be prepared where the initial study for a project shows that there is no substantial evidence of a significant environmental effect or where revisions to the project would avoid the significant environmental effects or mitigate these effects to a point where IIclearly no significant effects would occur and there is no substantial evidence that the project as revised may have a significant effect on the environment.1I -9- CASS!DY\HCMNEGOE.2\12-22-~' project modifications are made to lessen the environmental impacts so that a negative declaration may be prepared in lieu of an EIR, the city must prepare a revised Initial study which reflects changes that have been made to the project to reduce the impacts to less than significant.5 To summarize, when reviewing a later project under a program EIR, the"lead agency (here, the city) must either decide to prep9re a negative declaration, or if not, to demonstrate with substantial evidence in the record that a fair argument cannot be made that the project may have significant environmental effects. C. Definina "Prolect" for Purposes of Analvsis An initial study must contain, among other items, a description of the project, including the project's location. state CEQA Guidelines 5 15063 (d) (1). Appendix D--part I (Initial study-Environmental Infor~ation Form) to the city Environmental Guidelines requires a project description that includes "site area, uses, size and number of buildings, parking, number of dwelling units, scheduling, and any other information necessary or helpful to understand project. II 1m initial study also must contain information identifying the environmental effects of the project, by use of a matrix or checklist, and a discussion of suggested ways to mitigate the significant effects. CEQA Guidelines 5 15063(d). The initial study form that has been developed with the checklists is not sufficient in itself to 5 Under the state CEQA Guidelines, an initial study must identify environmental effects that may result from the project, and discuss ways to mit~gate those identified significant effects. 5 15063 (d) (3) and (4). -10- CASSIOY\HCMN~GOE.2\12-2Z.9' satisfy CEQA: There also must be a corresponding disclosure and discussion of the evidence and data relied upon to support the conclusions reached. citizens Association for Sensible Development of Bishop Area v. county of lnyol 172 cal.App.3d 151 (1985). Where a lead agency relies on an earlier environmental document, the initial study should at least summarize, with supporting citations, the relevant conclusions of the earlier document so that it can be determined whether such reliance is appropriate. Emminoton v. Solano Countv RedeveloDment Aqencvl 195 Cal.App.3d 491, 501-503 (1987). For purposes of a project description, an lIaccurate, st:able and finite project descriptionll is essential to an informative and legally sufficient environmental review under CEQA. countv of lnyo v. city of Los Anaelesl 71 Cal.App.3d 185, 192-193 (1977). A IIproj ect II is def ined by the State CEQA Guidelines to include lithe whole of an actionll (as discussed above) I and applies to the overall activity (and not just the particular land use approval(s)), even when a number of discretionary approvals may be required. 5 15378. A project may not be "piecemealedll for environmental review purposes. citv of Carmel-Bv-the-Sea v. Board of Supervisors I 183 Cal.App.3d 2291 241-243 (1986) (ElR should address impacts associated not only with a proposed rezoning, but also the effects of development allowed under the rezoning). On this basisl the court I in citizens Assn. for Sensible Development of BishoD Area v. County of lnyo, 172 Cal.App.3d 1511 167 (1985)1 rejected the County's use or a negative declaration for a general plan amendment and rezoning -11- CASSIDY\HC~NESOE.2\12-22.;J necessary to carry out a shopping center project, despite the County's argument that it would be "premature" to prepare an EIR before the tentative map for the project was before the county. Such an approach divided the project into two parts (i.e., piecemealed the project) in violation of CEQA. D. Leqal Requirements for specific Plan Consistency It IS settled California law that zoning ordinances must be consistent with any applicable specific plan (Gov. Code ~ 65455). In addition, development agreements, tentative maps and parcel maps must also be consistent with any applicable specific plan (Id.; Gov. Code 5 65867.5). For purposes of these consistency requirements, the same test which applies to consistency of zoning with general plans is the minimum applicable standard: that the various land uses authorized by the rezoning ordinance are compatible with the objectives, policies, general land uses, and programs specified in the specific plan. (See, Gov. Code 5 65860(a) (ii); ~, Lesher communications, Inc. v. citv of Walnut Creek, Cal.3d 531 (1990).) III. INADEQUACY OF ENVIRONHENTAL REVIEW The comments in this section III are based upon the legal requirements for environmental review outlined above. In addition, the comments contained in Section IV pelow relating to the Project's inconsistency with-the Specific Plan are intended to serve as comments on both the Negative Declaration and the rezoning application for the project. In this connection, we note preliminarily two major defects in the Negative Declaration under the requirements of CEQA. As -12- CASS[OY\HCMNESOE.2\12.22-9~ , ':r; lJ. (--': !7 ' noted above, if a lead agency determines that a proposed project will not have a significant effect on the environment, the lead agency can adopt a negative declaration. The negative declaration must be based upon an initial study, which identifies potentially significant effects on the environment and specifies revisions in project plans or proposals made by, or agreed to by, the applicant before the proposed negative declaration is released for public review, which would avoid the effects or mitigate the effects to a point where clearly no significant effect on the environment would occur. There must also be no substantial evidence in light of the whole record before the lead agency that the project, as revised, may have a significant effect on the environment. The Negative Declaration is accompanied by a document entitled, "Homart Project Matrixll and dated November 9, 1994 (the "Matrixll), which not only discusses various aspects of the Project, adverse impacts and mitigation measures, but has information not contained or discussed in the Initial study with respect to both project adverse impacts and mitigation measures. There is no correlation between the two documents, and often inconsistencies between them. Obviously, for purposes of the informational function to be performed by CEQA, this approach is inadequate and not in co~pliance with the requirements of CEQA discussed above.6 6 Based on our assumption that the city intended that the Matrix form part of the environmental review under CEQA, we have, in this Memorandum, commented where applicable upon the inadequacies of the analysis and mitigation measures specified in the Matrix. This does not, however, obviate the city's failure to comply with the requirements of CEQA with respect to the Initial study. 1 -13- C~SSIOY\HOMNEGOE-2\12.22-,. In addition to this deficiency, we understand that the city intends to rely on the Negative Declaration with respect to all further approvals necessary to carry out the Project, with no additional environmental review. This includes Site Development Review, that will take place entirely at the Staff level without public presentation to either the Planning commission or city council,.which means that the most critical issues with respect to the Project will never be publicly considered. Since this is the case, then the impetus for thoroughgoing environmental review at this stage of the Project is more compelling. Since the Project rezoning will be the first step which commits the city to implementation of the Project, and in light of this intention of the city, it is critical that all adverse environmental impacts of the Project are identified at this stage in sufficient detail adequately to apprise the public and decisionmakers of those adverse effects, and the manner in which proposed mitigation measures will in fact "clearlyll avoid the effects or mitigate the effects of the Project to a point where clearly no significant effect on the environment would occur (Pub. Res. Code 5 21080(c)(2)). We turn now to the specific comments on the Negative Declaration in this Section III, followed by comments on the Project's inconsistency with the Specific Plan in Section IV below. A. A Decision to Rely on the Specific Plan ErR Would be Flawed. The city's determination that the Specific Plan EIR adequately analyzed the~irnpacts of the Project and that a Project -14- C~SSlDY\HOMNEGOE.2\12-22-9" specific EIR is not necessary is erroneous. The city recognized in the Specific Plan EIR that site-specific development proposals may require project EIRs to assess project-specific environmental impacts (Draft specific Plan EIR, p.1-2), and that the program EIR approach "reduces, but does not necessarily eliminate, the need for future environmental analysis." (Draft Specific Plan EIR, p.1-6). The Specific Plan EIR analyzed impacts resulting from overall development of Eastern Dublin under the Specific Plan, but it did not, nor could it, analyze specific land uses, densities, building siting and land coverage, and the specific infrastructure improvements necessary, for each individual phase of development under the specific Plan represented by individual projects. As recognized by the San Mateo Superior Court in its March 10, 1994, Hemorandum of Decision (the "Decision") in the case of Butler v. citv of Dublin (Case No. 385533), a copy of which is attached as Exhibit A, a program EIR for long range planning and zoning purposes is "necessarily general" (Decision, p.7, lines 19-28, citing villaae Laauna of Laquna Beach v. Board of Supervisors of Oranae County, 134 Cal.App.3d 1022 (1982)). The Superior Court noted that, liThe overall Dublin Plan requires that as each step project or development comes pefore the city, a new EIR will have to be prepared." [citations omitted] (Decision, p.17, lines 3-6). The Negative Declaration evidences precisely this point made by the Superior court in the Butler proceeding. The Negative Declaration generally contains no greater level of analysis of -15- C~SSrDY\HCMNSGDE.2\12~22.9~ the impacts of the Project than that generalized level of analysis of the program represented by the Specific Plan and analyzed in the Specific Plan EIR. In addition, studies called for in the Specific Plan EIR and the Specific Plan prior to development of Eastern Dublin in order to ascertain the full scope of environmental impacts and appropriate mitigation measures-to avoid those impacts are simply carried forward in the Negative Declaration. These "mere conclusions" are inappropriate and inadequate and evidence the compelling need to go beyond the program level of analysis contained in the Specific Plan EIR in order to meet the requirements of CEQA and impose appropriate mitigation measures on the Project to avoid or mitigate the effects of the Project to a point where clearly no significant effect on the environment would occur.7 For these reasons, and for the reasons discussed in this section III, an ErR should be prepared for the project.8 7 In addition to these deficiencies, we have found no evidence in the Initial Study, or otherwise, that the city consulted with other agencies regarding the recommendations of those agencies as to whether an EIR or negative declaration should be prepared. 8 Of course, not only should an EIR be prepared, but if it identifies unmitigated adverse impacts (or the city determines not to adopt feasible mitigation measures), the city cannot approve the Project absent "overriding considerations" findings. (Pub. Res. Code ~ 21081; CEQA Guidellnes ~S15091, 15092, 15093.) We also question whether the City can make the determination, other than the generalized discussion contained in the Specific Plan EIR, that this Project is within the scope of the project covered by the Specific Plan EIR. (See, CEQA Guidelines ~ 15l68(c).) It is, presumably, for this reason that the Court in Butler noted that the Specific Plan EIR was "necessarily general" (Decision, p.7, line 27), and that the specific Plan would require "that as each step project or development comes before the city, a new EIR will have to be prepared." (Decision, p.17, lines 4-6.) . -16- CA5SI0Y\HCMNESOE.2\12.22.i: B. A Mitigated Negative Declaration is not the Legally Mandated Vehicle for Environmental Review of the Proiect. while the city has elected to prepare, based upon the Initial study for the Project, an Amended Negative Declara~ion, that determination does not comport with law. A negative declaration (including a mitigated negative declaration) may only be adopted when revisions to the project have been incorporated into and agreed to by the applicant prior to the release of the negative declaration for public review that would avoid or reduce the significant environmental impacts to a point where clearly no significant effect on the environment would occur and where there is no substantial evidence in light of the whole record that the project, as revised, would not have a significant environmental effect. (Pub. Res. Code 55 21064.5, 21080(C) (2); Sundstrom, supra, 202 Cal.App.3d at 306-307.)9 In the Initial study checklist for the Project, the city has checked "No" for every category of potentially significant environmental effects, even though the narrative discussion of each category describes adve~se impacts which would be caused by the Project. That narrative discussion then generally concludes that specific Plan mitigation measureS and corresponding condi tions of approval will I1mi tigate any impac.1:.s in this topic area to a level of insignificance. II The legally mandated 9 of course, if there is a fair argument based on substantial evidence in light of the whole record that a project may have a significant effect on the environment, an EIR must be prepared. Pub. Res. Code ~ 21080(d)i No oil, Inc. v. Citvof Los Anqeles, 13 Cal.3d 68, 75 (1974). As detailed in this Memorandum, such a fair;argument exists in addition to.the other legal bases upon which an EIR should be prepared for the Project. -17- CASSIDY\HOMNEGDE.2\12.22~9~ analysis requires that, if any aspect of the Project may have a significant adverse effect, the checklist item be answered "yes" or "maybe", with a discussion in the Initial study in reasonable detail identifying those potentially significant environmental effects, and a discussion regarding whether and how these effects are capable of mitigation. If effective mitigation or project revisions are availabler then the City, in order to fulfill the CEQA mandated public disclosure requirementr must discuss how and in what manner the measures and revisions will reduce the impacts so as to provide adequate information to the public and the decisionmakers. This discussion (including the effects of mitigation) must disclose the data or evidence upon which the persons conducting the study relied.10 Mere conclusions provide no vehicle for adequate environmental review (much less judicial review). citizens ~ssociation for Sensible Develooment of Bishop Area, sunra, 172 Cal.App.3d at 171; sundstromr supra; ~, CEQA Guidelines 515063(d) (3). These requirements have not been followed by the city. Nor is there any indication in the Negative Declaration (or in the city files) that the applicant has either revised the Project to incorporate, or agreed to, any of the mitigation measures identified in either the Negative Declaration of the Matrix. The city also has-failed to follow its own procedures set forth in 10 Indeed, the CEQA Guidelines now mandate not onlv compliance with these requirements, but alsor where appropriater "a citation to the page or pages where the information is found." (CEQA Guidelines ~15063(d).) The Negative Declaration contains little, if any, such citatioDs to the extent it relies on data or evidence outside of the 'Initial Study narrative. -18- CASS1DY\HCMNEGDE.2\12-22-9' Section 2.6 of the city Environmental Guidelines: preparation of a revised Initial study which reflects changes to the Project that reduce the impacts to less than significant. The City's proposal of studies to identify further Project revisions and mitigation after adoption of the final Negative Declaration also violates the Sundstrom rule. _ c. The Project Description Has Not Been Sufficiently Developed or Described to Afford MeaningfUl Environmental Review. Even if a negative declaration would otherwise be appropriate, the Project description is inadequate, precluding meaningful review and analysis of project impacts. It is not clear whether the Project is proposed to be implemented in two phases (with development of the "east parcel" during a second phase; see, Matrix, p. 14, Mitigation Measure 03.04/29.0). If there are two phases, both comprise the Project and both should be discussed and analyzed now, including the timing of the development of each phase, its relationShip to other development under the Specific Plan (including cumulative impacts), the timing of the phasing in relationShip to identified adverse impacts and implementation of mitigation measures. Even though the city's Environmental Information Form calls for a description that includes uses, size and number of buildings, parking and other information lInecessary" to understand the Project, this form has been filled out in at best a general manner: The Project is a "request to rezone 75+/- acres from Planned Development-Business Park (low coverage) to a standard Planned Developmentll and will include a "Site -19- C~SSIDY\HCMNEGOE.2\12.22~9~ Development Review and Tentative Parcel Map"; the Planned Development "would allow for an 800,000 square foot commercial center which may include retail shops, offices, movie theatres and restaurants amonq other uses." [emphasis added]. The Project description in the text of the Negative Declaration is even more general. A review of the Rezoning Application indicates that the applican~ may have a more specific proposal, as the application sets forth zoning standards (~, parking and loading requirements) which are to apply to the Project that presumably bear some relationship to what is contemplated for the Project site. The Conceptual site Plan attached to the Negative Declaration shows the location of buildings and parking areas on the Project site. Either this is so conceptual in nature that the city did not want to utilize these standards and plans on which to base its environmental analysis (because the text of the Negative Declaration contains no discussion of these standards or the Conceptual Site Plan or any other Project specific details), or this plan should be incorporated into the Project description, with the various uses and their respective square footage and locations identified.11 11 To further highlight the problem created by these inadequacies in the Project description even though required by the city's own policies, the CEQA Guidelines require that the city must not only incorporate feasible mitigation measures, but also alternatives developed in the specific Plan EIR, into subsequent actions with respect to the Project (CEQA Guidelines S15168(c) (2)). Not only is the Negative Declaration devoid of any discussion of feasible alternatives, but any meaningful analysis of those alternatives is precluded by the inadequate Project description contained in the Negative Declaration. -20- CASSIDY\HC~NEGOE.2\12-22.S4 Have the DSRSD plans for serving the Project with potable water and wastewater services been completed? If not, how can conclusions be reached in the Negative Declaration regarding servicing the Project and any impacts associated with such service? The Negative Declaration should specify which mitigation measures DSRSD will implement to ensure that no signific~nt environmental effects occur as a result of the Project. In an October 19, 1994, letter to the city Planning. Department from Pacific Gas & Electric (PG&E), the following concerns were expressed by PG&E regarding the Project: (i) lack of access to the gas mainj (ii) close proximity of buildings to major gas and electric facilities parallel to 1-580j (iii) lack of right-of-way and property line information on the Project Conceptual site Planj and (iv) proposed landscaping near the major gas and electric facilities. These concerns must be addressed in the Negative Declaration, with a corresponding discussion of appropriate agreed-to, known mitigation measures. The statement that the Specific Plan EIR mitigation measures relating to solid waste, power and natural gas, water, sewer, septic tanks and storm water drainage were developed to ensure environmentally sensitive provision of these services does not address the CEQA required analysis of the impacts in each of these areas. CEQA requires full and complete disclosure of impacts, not environmentally sensitive provision of services, and identification of appropriate mitigation measures to avoid or " -33- CASSJDY\HCMNEGDE.2\12.22-9~ mitigate the effects to a point where clearly no significant effect on the environment would occur. 8. Human Health Demolition of a portion of the Madigan Building has not been described, but should be describedJ as part of the Project. This demolition is necessary to construct the commercial centerJ and has pot~ntially significant environmental effects due to the asbestos contained in the building. This building, and its demolition impacts, do not appear to have been analyzed in the Specific Plan EIR, so these impacts must be analyzed now. with respect to underground storage tanks that have been removed, the Negative Declaration should disclose any information known at this time regarding evidence (or lack thereof) of soil or groundwater contamination, even though the monitoring period has not been completed. In other words, the Negative Declaration must at least disclose and analyze information known regarding potential contamination, even though the full extent may not yet have been ascertained. IV. PROJECT INCONSISTENCY ~FTH SPECIFIC PlJl.N The Project is inconsistent with, and does not fully address, the following goals/policies and corresponding implementation measures of the Specific Plan.14 We have '- 14 We note that the Decision in Butler concluded that "in the context of the EIR, and to the extent pertinent to the SP [Specific Plan) and the GPA [General Plan Amendment to implement the Specific Plan), the use of 'should' is synonymous with 'shall' and is manda'tory and I encourage I is the equivalent of I require I . II (Oecis ion, p. 18, lines 18-21.) The Court reiterated this holding with respect to the Specific Plan by noting, "All of the analysis hereinabove set out with regard to I shall', I should r, 'require I, and 'encourage I, is applicable to -34- C~SSI~Y\HOMN<GCE.2\12.2~.9. focused only on inconsistencies in areas of greatest concern to our client, although we believe that the Project also is inconsistent with other goals, policies and action programs of the Specific Plan that are not specifically identified in this Memorandum. A. Traffic and circulation (Specific Plan, Chapter 5.0) 1. Goal (Specific Plan, p. 49): To provide a circulation system for Eastern Dublin that is convenient and efficient, and encourages the use of alternate modes of transportation. 2. Goal (Specific Plan, p. 53): To establish a vehicle circulation system which provides sufficient capacity for projected traffic and allows convenient access to land uses, while maintaining a neighborhood scale to the residential street system. 3. Action Proaram 5A (specific Plan, pp. 54-55) requires that detailed development plans be submitted to the city all financing questions under the SP." (Decision, p. 21, lines 4-6.) In this connection, the Court also determined that, various phasing and implementation aspects of the overall program/project therefor constitute prerequisites which must be met before any specific development plan will be approved and before commencement of any physical activities to carry-out any such development plan. (Decision, p.1S, lines 21- 25. ) The Butler decision governs the cityJs actions with respect to the project. As such, the analysis set forth in this Hemorandum is premised in part on the clear requirement that the mandatory policies of the Specific Plan must be in place before the city may commit to the project through approval of Homart1s' application for rezoning. -35- CASSIDY\HCMNEGDE.2\12-22-9~ in connection with a proposed development that include certain specified standards identified on pages 54-55 of the Specific Plan for major arterial streets, arterial streets, major collector streets, collector streets, local residential streets and industrial roads. The Project plans do not address these standards. The Matrix simply indicates that this will be part of the site. Development Review (Matrix, p. 2). For example, one identified standard requires that full access to major arterial streets shall occur only at signalized intersections. This information should be provided before the city acts on any Project application. 4. Goal (Specific Plan, 55): To maximize opportunities for travel by public transit. The Project application does not specify the ways in which opportunities for travel by public transit will be maximized. Specifically, policv 5-10 (provide transit service within one quarter mile of 95% of the population in the Specific Plan area in accordance with LAVTA service standards; Specific Plan, p. 55)), and Policv 5-11 (provide transit service, at a minimum frequency of 1 bus every 30 minutes during peak hours, to 90% of employment centers with 100 or more employees in accordance with LAVTA service standards; Specific Plan, p. 55)), do not appear to have been addressed in ~~- the Project applications and/or mitigation measures. Further, Policv 5-13 (Specific Plan, p. 55) calls for establishing design guidelines for residential and commercial development so there are clear and safe pedestrian paths between building entrances and transit service stops. In order to implement these policies, '.f' -36- CASS!JY\HCMNE~~E.2\12-22-9~ Action Proqram 5B (Specific Plan, p. 56) requires review and approval by the City, as part of conditions of Project approvals, of the following: public transit route and phasing plan, to be prepared in consultation with LAVTA; bus turnouts and transit shelters, in consultation with LAVTA; and pedestrian paths between transit stops and building entrances. Have discussions with LAVT,A occurred? Will bus shelters and pedestrian paths be provided in conjunction with LAVTA? These features appear only as a "condition for developers to provide" (Matrix, p. 2). What does this mean, and how does it comport with the Specific Plan requirement? 5. Goal (Specific Plan, p. 5S): To minimize the transportation-related impacts of development in Eastern Dublin. In addition to participation in Transportation Systems Management programs (Policy 5-21 and Action Program 5G), Policy 5-22 (Specific Plan, p. 58) requires the establishment of park-and- ride lots, and Action Proaram 5H (Specific Plan, p. 58) requires the City to work with developers at the freeway interchanges to provide these lots between 1-580 and Dublin Boulevard on the west sides of Hacienda Drive, Tassajara Road and Fallon Road. The lots are to provide a minimum of 100 parking spaces and include lighting and landscaping. The Project is located at a freeway >~ interchange. Nevertheless, it is not specified whether a park- and-ride lot is required in connection with the Project, or whether the Project will be required to fund a portion of a planned park-and-ride lot. The Matrix (p. 1) merely states that the park-and-ride lot should be located on the west side of :. -37- CASSIDY\HCMNEGDE.2\12-22-94 Hacienda. The compliance (or lack thereof) with this Action Program should be analyzed and disclosed. B. Community services and Facilities (Specific Plan, Chapter 8.0) 1. Goal relating to fire protection (Specific Plan, p. 125): To ensure that fire protection services are consistent with sta.ndards maintained throughout the city. policv 8-5 (Specific Plan, p. 125) calls for timing the construction of two new stations that will be needed to service new demand. The first station is to be sited and construction completed prior to completion of the initial development. Action Proqram 8G (Specific Plan, p. 125) requires that the westernmost site (the first fire station) "must be assured prior to the approval of the first development plans in Eastern Dublin. II There is no indication that this has been accomplished (even for the temporary station currently contemplated), which is a requirement prior to approval of any Project applications. 2. Goal relating to solid waste (Specific Plan, p. 126): To reduce the total flow of waste to landfill by promoting waste reduction, source separation, curbside collection, and other recycling alternatives to landfilling. Policy 8-7 (Specific Plan, p. 126) calls for supporting ACWMA efforts to ......-- develop alternative disposal facilities for organic waste in the Tri-Valley area. Action proaram 8K (Specific Plan, p. 126) calls for preparation of a solid waste management plan for Eastern Dublin. The Matrix (p. 16) indicates that an update to the Sw11P for Eastern Dublin is needed, but that the Project will not 'f' -38- CAssrDY\HC~NEGQE.2\12-22-9~ exceed thresholds of current SRRE. Upon what analysis is this conclusion reached? How does it support a decision not to prepare the update for Eastern Dublin? C. Sewer, Water and storm Drainaqe (Specific Plan, Chapter 9.0) 1. Goal relating to water (Specific Plan, p. 129): To provide ~n adequate water system for the planning area. Policy 9-1 (Specific Plan, p. 130) calls for providing an adequate water supply system and related improvements and storage facilities for all new development in the planning area. Policy 9-2 (Specific Plan, p. 130) calls for coordinating with DSRSD to expand its service boundaries to encompass the entire Eastern Dublin Specific Plan area. Action Prooram 9B (Specific Plan, pp. 130- 131) calls for, as a condition of proiect approval in Eastern Dublin, the construction of a recycled water distribution system, as well as necessary off-site facilities to support recycled water use. Has this been accomplished? The "Action Takenll column of the Matrix (p. 21) merely states that a will-serve letter will be required. 2. Goal relating to wastewater (Specific Plan, p. 131): To provide adequate wastewater collection, treatment and disposal. policv 9-4 (Specific Plan, p. 132) calls for ,.. coordinating with DSRSD to expand its service areas to encompass the entire planning area, and to explore the possible need for a wastewater storage facility in Eastern Dublin. Action Prooram 9K (Specific Plan, p. 132) requires development within the planning area to fund a recycled water distribution system computer model, -39- CASSIDY\HCMNEGCE.2\12-22-9~ reflecting the Specific Plan land uses. Has this been accomplished? How will the system be funded? What facilities will the Project applicant be required to install (see IIAction Taken" column, Matrix, p. 19)? The DSRSD indicates that major potable water, recycled water and wastewater collection facilities to serve the Project will be designed and constructed at some point (November 3, 1994, letter to City's Planning Director, Mr. Laurence Tong). Exactly what facilities will be needed? Has a funding source or sources been identified to assure installation of these required facilities? Action Proaram 9N (Specific Plan, p. 132) requires project applicants to prepare a detailed wastewater capacity investigation to supplement the information in the Specific Plan, which reflects the phased development approach matched against the allocation of sewer permits. This does not appear to have been done in connection with the Project application. The planned land uses at the site must be identified and estimated wastewater flows to be generated based upon these land uses. This must be done prior to approval of the Project. It also appears that this is a prerequisite to DSRSD planning for needed facilities. Table 9-2 on page 136 of the Specific, Plan is a matrix of implementation responsibilities for wastewater service. These items, as they relate to developer responsibilities, do not appear to have been accomplished in connection with the Project application. -40- CASS!DY\HCMNEGDE.2\12-22-94 3. Goal relating to storm drainage (Specific Plan, p. 133): To provide adequate storm drainage facilities for the planning area. Policy 9-7 (Specific Plan, p. 133) calls for requlrlng drainage facilities that will minimize any increased potential for erosion or flooding. The Project application should include information regarding Project drainage and how that wirl be accommodated. Action Proqram 9T (specific Plan, p. 134) requires, prior to develonment approval, that a master drainage plan must be prepared for each development application. The plan must include hydraulic studies of entire related upstream watersheds, phase approaches and system modeling, documentation of existing conditions, design level analysis of impacts on existing creek channels, detailed analysis of effects of development on water quality, detailed drainage design plans for each phase of the Project, and design features to minimize run off flows within existing creeks. This has not been accomplished for the Project and must be prepared prior to approval of any Project application (Matrix, p. 25, indicates that the County is preparing the plan). D. Financina (Specific Plan, Chapter 10.0) (see also Chapter 11, Implementation) 1. Goals: with respect to financing, the Specific' Plan's goals (Specific Plan, p. 151) include (i) requiring new development to pay for the full cost of infrastructure needed to serve the area and funding the cost of mitigating adverse project impacts on existing infrastructure and services; and (ii) developing a financing plan that provides for reimbursements from -41- CASS I DY \HC~lNEGDE. 2 \ 12 - 22 - 9~ any other benefiting areas for costs that the Specific Plan area owners are required to advance (and provide a fair allocation of costs among land uses) . The specific policies set forth on page 151 of the Specific Plan to achieve these goals include, among others, policies calling for allocation of costs for the infrastructure and public services improvements on a "benefit receivedll and "fair share allocation" basis; adoption of an area of benefit ordinance (an area of benefit ordinance covering bridges and streets has been adopted by the City); dedication of land for road and other improvementsj and the issuance of bonds to fund infrastructure and public services. Specifically, Policy 10-5 calls for requiring development projects to fund the full cost of oversizing of facilities that will serve future development as well as the initial development, subject to future reimbursement from future development benefiting from the oversizing. Policy 10-8 calls for providing for reimbursements from other benefiting areas for costs that the Specific Plan area owners are required to produce. The financing action program set forth on pages 152 - 153 of the Specific Plan calls for the City, in connection with development agreements for individual projects, to spell out the precise financial responsibilities of-the developer. Action Programs also call for adoption of an area of benefit ordinance; creation of special assessment or Mello-Roos districts; Mello- Roos Bond Pooling and citywide developer/builder impact fee -42- CASSIDY\HCMNEGOE.2\12-22-;J Demolition of a portion of the Madigan Building, which constituted part of the old jail facility, is also contemplated as part of the Project (see, Negative Declaration, p. 18). This is not described as part of the Project. This demolition should be included in the Project description, and the impacts of the demolition and asbestos removal analyzed, with imposition of appropriate mitigation measures. Potential adverse impacts associated with this part of the Project might include (but would not necessarily be limited to) air quality impacts, construction- related impacts and impacts related to the handling of hazardous materials. Not only is the Project inadequately described, the Project description does not contain a full accounting of the various land use approvals which are necessary to implement the Project. These include a Tentative Map, Site Development Review, and a Development Agreement, which is discussed in the Initial Study and which is, according to the Initial Study, integral to the implementation of required mitigation measures and Specific Plan policies. The Project description contains no detail whatsoever with respect to the manner in which the Project will be implemented through these subsequent land use approvals or the manner in which the Project will be refined and fleshed out through that process. These flaws also make it impossible to conduct a meaningful environmental analysis, and the Project has not been analyzed in connection with these subsequent land use approval applications. These approvals should be analyzed now as part of revie,v of the proj ect (to avoid IIpiecemealing" the -21- CASSIDY\HCMNEGDE.2\12-22-9. Project for environmental review purposes in violation of CEQA; see, ~, Citizens Association, sunra), because the Negative Declaration is intended to cover all of these Project approvals. D. The Analysis of Impacts in the Negative Declaration is Insufficient and is not supported by Substantial Evidence. In sum! our overall comments on the Negative Declaration include the following: (i) there is little, if any, Project specific analysis under most of the topic areas, and that analysis is at best conclusory and superficial, without adequate disclosure of the data or evidence relied upon; (ii) the mitigation measures proposed are not tailored to the Project; (iii) in many instances, the Negative Declaration (or the Matrix) calls for a study to provide information on adverse impacts and to develop mitigation measures to respond to those impacts;12 and (iv) there is no discussion or analysis of how the mitigation measures will actually reduce the Project specific impacts. The following specific comments are illustrative of the overall deficiencies of the Negative Declaration. These comments also show why an EIR should be prepared in connection with the proj ect. 13 12 While this IIstudyll approach clearly violates the Sundstrom rule discussed above, at a minimum, tpe City must, in the Initial study, determine the extent and nature of the adverse impacts, specify the elements which would be comprised in the mitigation measures implemented through a study, and describe how those elements would avoid the effects, or mitigate the effects, of the Project to a point where clearly no significant effect on the environment would occur. 13 Even if the City decides to proceed with the Negative Declaration rather than preparing an EIR, these comments should be responded to and a revised Negative Declaration should be prepared and recirculated for public review and comment. See, -22- CASSIDY\HCMNEGOE.2\I2-22-;~ 1. Water The environmental analysis of "Water" in the Negative Declaration should address the specific water demands for the Project. The mitigation measures identified in the Specific Plan EIR and included in the Matrix call for certain water supply and water quality improvements to be made in Zone 7 (~, ~, . Measures 3.5/28.0, 3.5/29.0 on p. 21 of Matrix). Have any of these improvements been made? How does this impact the water supply available for the Project? If these improvements have not been made, how and in what manner are their installation and construction assured? Even though the Negative Declaration states that DSRSD "has indicated that they have water to supply the project" (Negative Declaration, p. 13), the Negative Declaration should discuss the Project1s demand for water and what impact that demand has on cumulative water demands for the area. The February 1992 Zone 7 Water Supply Update indicates that the state Water Project (SWP) supplies 70% of the water used in the Zone 7 Area, and that the SWP cannot meet current demands. The Negative Declaration ignores this information and fails to explain what has occurred since the February 1992 Update that now allows adequate water supply for the Project. The Specific Plan EIR (see, Draft EIR at pp. 3.5-20 - 3.5- 21) indicates that the only water service to the planning area is a Zone 7 water connection to Alameda County that serviced the Santa Rita Jail/ and that development under the Specific Plan city Environmental Guidelines 5 2.6. -23- CASS:DY\HCMNEGDE.2\12-22-94 will necessitate a water distribution system and storage system (and if this system is not constructed, the impact will be significant). The I1Action TakenIJ column on p. 23 of the Matrix, relating to Mitigation Measure 03.05/34.01 contains the following statement: "At this time DSRSD states that it does not appear that new storage facilities will be necessary for this development." However, DSRSD' s November 3, 1994, comment letter to the City's Planning Directorl Mr. Laurence Tong, indicates that DSRSD currently is completely an Engineering Analysis of interim water distribution and storage alternatives to supply the Pro j ect (Comment Letter, p. 3, i 6), and DSRSD "will be designing and constructing major potable water, recycled water, and waste- water collection facilities to serve the proposed Homart project. 11 (Comment Letter, p.1.) Clearly, if studies are still ongoing with respect to the project's water supply and its adequacy and availability, neither the impacts of the Project nor agreed-to, known mitigation measures can be developed now. Rather, this approach violates CEQA and the Sundstrom rule (since, presumably, these studies will result in "[t]he requirement that the applicant adopt mitigation measures recommended in a future study... in direct conflict with the guidelines implementing CEQA." Sundstrom, 202 Cal.App.3d at 306) . In sum! the Negative Declaration should address project water demand (including fire flow capacity), whether there is in fact adequate water supplies to serve the Project (including emergency needs), DSRSD's plans to supply water to the. Project, . f -24- CASS J DY \HOr~NEGOE. 2\ 12 -22 -94 whether the Zone 7 connection is sufficient to serve the Project, and whether new water storage facilities will be required (and, if so, what are the corresponding impacts), and why it does not appear at this time that new storage facilities will be necessary. The Negative Declaration also states that a Master Drainage Plan will be prepared that will evaluate any changes in drainage patterns and flooding lito ensure there are no environmental impacts in this topic area." Drainage patterns resulting from the Project (~, building coverage, impervious surfaces such as parking areas and associated runoff) must be analyzed at this stage of Project review and approval. In addition! Mitigation Measure 03.05/07.0 (Matrix, p.18) calls for Project specific wastewater capacity investigations. To our knowledge, this has not been completed. The Eastern Dublin Facilities Plan Final Report, dated December 1993, prepared by DSRSD, addresses pipeline sizing for wastewater collection, potable water distribution and recycled water in Eastern Dublin, but it does not address specific Project demands and impacts. The rationale and reasoning for the proposed water and sewer facilities for the Project identified in Figure Three to the Initial study should be discussed and analyzed and agreed-to, known mitigation measures specified and incorporated into the Project. Deferring to a yet to be prepared Master Drainage Plan and yet to be undertaken wastewater capacity investigations again violates CEQA and Sundstrom: It fails to evaluate Project impacts at the earliest feasible time before the City is finally committed to the Project -25- CASSIDY\HC~NEGDE.2\12-22-9J in order fully and adequately to inform the public and decisionmakers regarding potential adverse impacts and feasible mitigation measures, and it results in a requirement that Homart adopt mitigation measures to be identified in a future study in conflict with CEQA. In this connection, we note one particularly acute problem posed by- the proj ect . Development in Eastern Dublin (including the Project) cannot increase the level of peak flows generated by the storm water drainage system. The Project site is, from the standpoint of established drainage patterns and hydrological principles, the best and most obvious location for a retention basis for mitigating peak flows from Eastern Dublin, especially into Pleasanton. Obviously, development of the Project precludes this option, and yet the Negative Declaration neither identifies other potential sites to serve this function, nor whether those other sites would adequately and appropriately mitigate, and what adverse impacts might be associated with these alternative locations for such retention facilities. The Negative Declaration should analyze this issue and alternatives and determine whether and which of these other sites will be as good, both functionally and environmentally, as the Project site for these purposes. 2. Noise The Negative Declaration concludes that the Project would result in increased noise levels, but "would not result in the exposure of people to severe noise levels." How can effective mitigation be assessed when one of the two noise mitigation " -26- C~SSIDY\H~1NEGOE.2\12-22-9~ , t measures (Measure 03.10/07.0, Matrix, p. 37) calls for establishment of a noise mitigation monitoring fee, but the ordinance has yet to be prepared? The requirements of the ordinance need to be in place in order to assess whether the fee to be paid for the Project, if any, and the uses to which the fee will be put adequately mitigates the Project noise impacts. 3. Land Use The Negative Declaration does not discuss land use impacts. The environmental analysis should include a discussion of the Project's consistency, or lack thereof, with the City1s General Plan and the Specific Plan. It is only through this process that the conclusions in the Negative Declaration could be reached. Comments on the Project's inconsistency with the Specific Plan and the implementation requirements are set forth below under section IV. 4. Risk of Unsets The mitigation measures imposed to reduce potential impacts call for additional public services in the form of additional police and fire personnel, and the acquisition of sites for construction of new fire stations. Have these services been added? Have sites been acquired for this purpose? The Specific Plan requires that the IIwesternmost site [for fire protection] must be assured prior to the approva1-of the first development plans in eastern Dublin.1! (Specific Plan, p. 125, Action Program 8G). While these public service mitigation measures were contemplated for the entire development of the GPA area, the Negative Declaration should analyze the Project-create~ need for -27- CASSIDY\HCMNEGDE.2\12-22-94 additional services and whether those needs can be met by existing public services. The Fire Department indicates that a temporary fire station will be utilized (as we understand it, three options are being considered) to meet the demands of the Project, and that financing for the fire station must be in place before January 1995, in_order to meet Homart's schedule for constructing and opening the Project (Fire Issues Related to the Eastern Dublin Specific Plan prepared for the Homart Project, 9/13/94 [the "Fire Issues"]). Provision of a temporary fire station and whether that temporary station will meet the service demands of the Project must be analyzed. In addition, the feasibility of a temporary station in relationship to available financing should also be addressed to determine if this interim mitigation measure is feasible. A wildfire management plan for the East Dublin area is also required to be prepared (Matrix, p. 12, Measure 03.04/12.0) which apparently is to be prepared on a project-by-project basis at the site development review stage (see discussion under "Action Taken" column in the Matrix). The elements of this plan for the Project should be identified, and discussed and analyzed, in the Negative Declaration. 5. TransDortation/circulation The Negative Declaration does not discuss the traffic/transportation/circulation impacts that will result from the Project, nor does it discuss the required Specific Plan measures to mitigate these impacts in this area (see, Specific 't,. -28- CASSIDY\HCMNEGDE.2\12-22-94 Plan inconsistency comments in section III below). If the Traffic Impact Study prepared for the Project is intended to address the Project impacts (the Negative Declaration, p. 16, indicates that the transportation and circulation impacts are mitigated by the measures incorporated into the Traffic Impact Analysis prepared for the Project, along with Specific Plan mitigati?n measures) 1 then the Traffic Study and its conclusions, along with the agreed-to, known mitigation measures, should be addressed in detail in the Negative Declaration. The Negative Declaration should also explain on what basis it is concluded that the Project will not result in traffic hazards due to the design of the Project: The design should be described and the way in which that design would reduce traffic hazards should be discussed. Even if the Project alone will not generate significant traffic impacts, cumulative impacts must be considered. Table 3.3-9, attached to the DKS Associates' December 15, 1992, letter to the City's Planning Director, Mr. Laurence Tong (which we understand is part of the Specific Plan EIR) , shows level of service (LOS) on freeways substantially degraded with cumulative development, including under the Specific Plan. The Project's contribution to these effects should be discussed and analyzed in ~~ the Negative Declaration. The Project Traffic Impact study analyzed operating conditions at key intersections under three scenarios: existing conditions; background conditions (existing plus projects with completion dates no later than 1995); and background plus project conditions. The study did not.adequately if -29- CASSIDY\HCMNEGDE.2\12-22-9~ analyze cumulative traffic impacts, because it did not take into account foreseeable projects with completion dates beyond 1995, much less buildout under the Specific Plan. To be legally adequate, a cumulative impact analysis should analyze a project over time with other past, present and reasonably foreseeable future projects (which includes unapproved projects undergoing environm~ntal review), or based on a summary of projections contained in the City's General Plan and Specific Plan. Pub. Res. Code ~21083(b); CEQA Guidelines ~15130; San Franciscans For Reasonable Growth v. city and Countv of San Francisco, 151 Cal.App.3d 61, 72-74 (1984). In addition, we understand that the City is in the process of considering a draft Traffic Impact Development Fee Ordinance. The Negative Declaration should discuss what fee will be required for the Project pursuant to that Ordinance (and how the fee is to be assessed, and whether it will provide sufficient mitigation in this case) after the Ordinance is adopted. To do otherwise is to assume the enactment of the Ordinance (which is within the discretionary purview of the City1s City Council) before that enactment, a prediction which cannot be made or relied upon for CEQA purposes. Also, the Negative Declaration should include an analysis of freeway and other improvements made in other jurisdictions (such as Pleasanton) that will benefit Eastern Dublin development, along with an allocation of the fair share of the cost of such improvements which should be allocated and borne by Eastern Dublin development! including the Project. -30- CASS!DY\HCMNEGDE.2\12-22-9J Clearly, the Project as a large retail shopping center, will generate substantial additional vehicular movement, will create demand for new parking, will impact upon existing transportation and traffic systems, will alter the present patterns of circulation and movement of people and goods, and increase traffic hazards. All of these must be addressed in the appropriate detail required under CEQA and mitigation measures proposed which would avoid the effects or mitigate the effects to a point where clearly no significant effect on the environment would occur. 6. Public Services Deferring analysis of Project impacts on public services by stating that services and improvements necessitated by the Project will be determined by studies currently being prepared violates CEQA and Sundstrom. The conclusory statement that, liThe Santa Rita Commercial Center will require some of the improvements or service increases that were planned for the Eastern Dublin Specific Plan," is unsupported by any analysis and evidence. By definition, the statement itself evidences that adverse impacts on public services will occur as a result of development of the Project. A separate analysis of the demand for increased public services (fire, police, schools, government services and facilities) created by the Project should be contained in the Negative Declaration, with a discussion of the corresponding mitigation measures intended to address each impact and the manner in which the measure will reduce or eliminate the identified impact. -31- CASSIDY\HCMNEGDE.2\12-22-9~ By way of example, a statement in the "Action Taken" column on p. 16 of the Matrix under Mitigation Measure 03.04/37.0, says that the Project will not exceed thresholds of the current Source Reduction and Recycling Element (SRRE). This statement is part of the analysis of Project impacts, and belongs in the text of the Negative Declaration (not in the IIAction Takenll Matrix column) '. along with the evidence supporting this conclusion. As another example, as discussed above, the Specific Plan calls for assurance, prior to aooroval of the first development plans in Eastern Dublin, of the acquisition of a site for the first of two needed additional fire stations to accommodate development in the Specific Plan planning area. Even though the Fire Department has plans for a temporary station, as far as can be ascertained, this temporary station is not so assured, even though the Project is the first development plan in Eastern Dublin. 7. utilities with respect to supplying the Project with potable water and wastewater services, the routes shown for DSRSD water and sewer facilities for the Project on Figure Three to the Initial Study do not constitute a discussion of the Project demands and impacts for these services. Nor do the conclusory statements in this section of the Initial Study that the specific Plan EIR .; considered solid waste, power and natural gas, water, sewer, septic tanks and storm water drainage, and developed mitigation, suffice for an adequate analysis of Project impacts, much less agreed-to, known mitigation measures. n -32- CASSIDY\HCNNEGDE.2\12-22-9J systems. Certain other actions identified are needed to be implemented by other agencies. The City cannot approve the rezoning application for development of the Project without the specific financing responsibilities being identified and tied to necessary infrastructure and public services improvements necessitated by the Project (see, Matrix, p. 39, which indicates that a financing ~ plan is being prepared and that the Development Agreement will address issues specific to the Project). To do otherwise directly conflicts with the spirit and actual requirements of the specific Plan and to rely on a yet to be approved Development Agreement not only begs the issue and the commitments which Homart will make in connection with the Project, but also relies upon a future action of the City, which is not assured or guaranteed, either with respect to enactment or with respect to the form and content of the Development Agreement.1S As the Fire Department aptly pointed out with respect to developer and building impact fees (Fire Issues, p.2)r those fees do not take into account whether adequate funds will be available for the necessary improvements and funding of projects in advance of, and correlated to, development of Eastern Dublin. Moreover, the updated Fiscal Analysis set forth in Attachment 1 to the staff 15 We have been advised that a draft Development Agreement has been prepared but that it is not yet available for public distribution. While a public hearing on the Development Agreement has been scheduled before the Planning commission on January 3 and before the City council on January 9, the financial and other obligations that presumably will be included in the Development Agreement should be identified and analyzed in the Negative Declaration anq considered in conjunction with, and not after, the rezoning application. -43- CASSIDY\HCMNEGCE.2\12-22-94 Report to the Planning commission for its December 19, 1994, hearing, does not provide the necessary financial information. In addition to these matters, the Project impacts on the identified major capital improvements listed in Table 10-1 of the Specific Plan should be identified. The Area of Benefit Ordinance addresses only bridges and streets, and does not cover all "pub~ic improvements" specified in the Specific Plan (see Specific Plan, p. 153). Moreover, while the City has preliminary estimates for a public facilities fee (see Recht Hausrath preliminary study incorporated in a Memorandum dated November 11, 1994 to Richard Ambrose from Bob Spencer), these estimates are preliminary and there is no analysis of the fee as it relates to the project. Nor is there any analysis of the traffic impact fee currently under consideration by the City and its relationship to the Project. Do the proposed fees meet the spirit, intent and requirements of the Specific Plan? Finally, the City of Pleasanton's and the North Pleasanton property owners' contribution toward roadway improvements that will benefit not only development in Pleasanton but also development in Eastern Dublin should be recognized .16 These improvements include construction of the Santa Rita/Tassajara, Hacienda and HopyardjDougherty interchanges at '1-580 (the "Pleasanton Improvements"). The Specific Plan emphasizes and 16 See, in this connection, the comments of the City of Pleasanton contained in its December 16, 1994, letter from Mr. Randall Lum to Mr. Lee Thompson. We incorporate that letter into this Memorandum in its ~ntirety as part of the comments set forth in this Memorandum. . -44- CASSIDY\HCMNESDE.2\12-22-94 calls for fair share allocation: this allocation should extend to the Pleasanton Improvements: requiring assessment of necessary fees in connection with Eastern Dublin development to fund not only the Specific Plan contemplated improvements but a portion of the Pleasanton Improvements, with reimbursement to the city of PleasantonjNorth Pleasanton Improvement District, as applicable and as fairly allocated. Respectfully submitted, -45- CASSIDY\HCMNEGOE.2\12-22-94 , . 2 3 4 5 6 (ENDORSED) FILED SAN UA TED COUNTY MAR 1 0 1994 C:ark ct. the SlJI"...erior {MJrt Bv~;JmAHA lAARCOr'UL03 . ~ c:.o.u;-( C~C..~ 7 SUPERIOR COURT STATE. OF CALIFORNIA 8 COUNTY OF SAN H~.TEO 9 10 CITY OF PLE?SANTON, a municipal corporation, 11 Petitioner and Plaintiff, 12 vs. 13 14 CITY OF DUBLIN, CITY OF DUbLIN CITY COUNCIL and DOES l THROUGH lOO, 15 Respondents and Defendants. / 16 17 GEORGE BUTLER, DARYL ROON, CAROLYN MORCfu~, GREENBELT ALLlp~CE, a California non-profit corporation, and PRESERVE AREA RIDGEL~~DS . COMMITTEE, a California non-profit corporation, 18\ 19 20 Petitioners, 21 22 23 vs. CITY OF DUBLIN, DUBLIN CITY COUNCIL, and DOES l-lOO 24 Respondents. 25 JENNIFER LIN, and the city of Pleasanton, 26 Intervenors. 27 28 EXHIBIT A No. 385533 Alameda County Case No. No. V-Q06477-8 VO MEMORANDUM OF DECISION / / 1 INTRODUCTION 2 The captioned matter comes before the Court upon the 3 Petition of Butler, et al. (hereinafter Butler or Petitioners) for 4 a writ of Handa te pursuant to both CCP 51085 and CCP ~1094. 5 5 against the City of Dublin (hereinafter Dublin) attacking the 6 validity of the California Environmental Quality Act (hereinafter 7 CEQA), the General Plan Amendment (hereinafter GPJ>..) , and the 8 specific Plan (hereinafter SP) adopted by Dublin with reference to 9 the East Dublin Planning J>..rea (hereinafter EDPA) pertaining to 10 Dublin's of Influence (hereinafter SOl) previously Sphere 11 established by the Local Agency Formation Commission (hereinafter 12 LAFCO) for the area easterly of Dublin I s present eastern city 13 north of Interstate Highway 1-580 and . .. -.J-\." SOUi:.n or: ~..e boundaries, 14 Alameda Contra Costa County boundary line. 15 The earlier Petition for Writ of Mandate filed by the 16 city of Pleasanton (hereinafter Pleasanton) was heretofore \ dismissed with prejudice and is not be!ore the Court. By orders 17 18 made in the Superior Court o! Alameda county prior to the transfer 19 of the case(s) to this Court, Jennifer Lin (hereinafter Lin) and 20 Pleasanton were allowed to intervene in the Butler Action. Lin is 21 a substantial property owner in the EDPA, desires to develop her 22 property and was one of the earliest proponeDts of development in 23 the EDPJ>.., participated from the beginning as one of the Significant 24 Property Owners (hereinafter SPOs) in the proceedings before the 25 Planning Commission and City council of Dublin. Her Complaint in 26 Intervention is supportive of the actions of Dublin in adopting t:-J.e 27 Environmental Impact Report (hereinafter the EIR), the GPA and the 28 SP for the area. Any decision hereinafter made which favors Dublin 2 1 will therefore be In favor of Lin and for the purposes of this 2 Court I S determination no distinction will be made between the 3 position of Dublin in responding to the Butler Petition and the 4 5 position of Lin on her Co~plaint in Intervention. Pleasanton was permitted to intervene by an Order of the 6\ 7\ 8 Hon. Joseph Carson, Judge of the Superior Court of the County of Alamecta, on September 20, 1993. Judge Carson limited Pleasanton's intervention to its status as a property owner within the EDPA 9 (Pleasanton owns a Hunicipal Water Tank site on a knoll easterly of 10 Tassajara Road and northerly of Gleason drive), thereby eliminating 11 its status as a Nunicipal corporation acting on behalf of its 12 Furthermore, Pleasanton by virtue of a citizenry as a whole. .13 written stipulation entered and filed on September 2~, 1993, agreed 14 that it would not raise any CEQA issues in its Petition nor 15 argument before the Court. The Court accordingly at the tine of 16 hearing herein restricted Pleasanton I s participation to those 17 i matters involving alleged arbitrary and capricious acts or Dublin 18 I 19 ". In adopting the GPA and the SP. In the pleadings riled herein the standing and status of 20 several of the Butler Petitioners was disputed by Dublin. Prior to 21 the commencement of the hearing, Dublin waived in writing any 22 attack on the status of the Petitioners other than as to Petitioner 23 Hoon. On the day of hearing, the parties further orally stipulated 24 that Eoon does have standing and that there are me~bers of the two 25 non-profit Petitioner organizations who do reside in and/or own 26 property In Dublin. Accordingly, all attacks upon the status or 27 standing of the But~er ~etitioners became moot; and it ~as 28 ackno',.;ledged bv all pari:ies that Pleasanton did have standing as a 3 property owner within the EDPA. 2 Based on a 11 of the foregoing, hearing/trial, oral 3 argument, etc., were held on February 3, 1994. Prior to the 4 hearing the Court was furnished with two Bekin's boxes full of the 5 administrative record, a very large ring binder of "Respondent's 61 7\ 8 Evidence Book", a compilation of the CEQA statutes and guidelines, four v~lumes of Court files and records, together with voluminous and well-prepared Memoranda of Points and Authorities which were 9 reviewed by the Court over a period in excess of five days 10 preceding the hearing. No ora~ testimony nor other documentary 11 evidence (other than several large and helpful maps of the subject 12 area) was introduced at trial. The matter accordingly proceeded to 13 trial/hearing based upon the e.dministrative record (and ve.rJ.ous 14 excerpts contained in the Respondent1s Evidence Binder), various 15 declarations, the pleadings, e.nd the l1emoranda of Points and 16 Authorities filed by the pe.rties. J..ttached hereto and incorporated 17 \ by reference for ease of understanding the location, etc., of the 18 ", eastern Dublin area are Exhibits J.. and B, being maps of the area on 19 which the boundaries of the General Plan J.~endment Area and of the 20 Specific Plan boundary e.s well as the General Road Le.yout within 21 the specific Plan area are delineated. 22 REQUESTS FOR JUDICIAL NOTICE~ ETC. 23 Dublin I S requests for judicial notice that (1) the 24 referendum on the Eastern Dublin General Plan and Specific Plan was 25 passed by the voters, and (2) the certification by the Registrar of 26 Voters as to the outcome of that referendum election, are granted. 27 Pleasanton~'s requests for judicial notice of (1) the tax 28 bill on the property owned by Pleasanton within the project area " .. and (2) the official records of the Alameda County Office of 2 Treasurer and Tax Collector are granted. 3 Dublin's ~equest to be allc~ed to amend its Answer lS 4 granted. 5 APPLICABLE STANDARDS OF REVIEW 6\ 7\ 8 The Butler Petitioner's caption their Petition for writ '. of Manslate as being made under and pursuant to: "CCP 51085\1094.5; Gov.Code 565302 et seq; Gov.Code 565450 et seq; and Pub.Res.Coce 9 521,000 et seq.1l Petitioners are accordingly seeking relief under 10 concepts of "Traditional Handate" and "l>.dministrative Handate. II 11 Different standards of review are applicable under the different 12 theories and CEQA itself recognizes these distinctions: 13 "Tradi tional nandate, as codified in section 1085, is the modern ecuivalent of the common law Dreroaative writ of - - -' ruandamus, and may be issued by any court, except 2. municipal or justice court, to any inferior tribun2.l, board or agency "to compel the perfOD:lanCe of an aci; which the law specific2.lly enjoins, as a cuty resulting from an office, trust, or station; or to compel the admission of a party to the use and enjolwent of a right or office to which he is entitled, and from which he is unlawfully' precluded. by such lm:erior tribunal, corporation, board or person. II (~~ 1084, 1085; 8 Witkin, Cal. Procedure (3d ed. 1985) Extraordinary Writs, ~4, pp. 643-644) Administrative mandate (~1094.5), on the other hand, is the procedure used to obtain judicial revie,;{ of adludicatorv decisions (i.e., decisions determining what the facts are in relation to specific private rights or interests) of state-level or local governr.tental bodies. (Deering, Cal. Administrative Mandamus (Cont.Ed.Bar 2d. 1989), ~l.l, p.2) 14 15 16 17 18 19 20 21 22 23 CEQA recognizes this inherent distinction. It re~uires a petition for writ of administrative mandate when an action seeks revier..,r of a Ildetermination, finding, or decis ion of a public agency, made as a result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken and discretion in the determination of facts is vested in a public agency, on the grounds of noncompliancell with CEQl>.. (Pub. RescurcesCcde 521163.) Conversely, CSQA reaUlres a 24 25 26 27 28 5 '\ 61 I 7\ 8 petition for a writ of traditional mandate in all other actions brought lito attack, review, set aside, void or annul a determination, finding, or decision o~ a public agency on the grounds of noncompliance with CEQA, in which event lithe inquiry shall extend only to whether there was a prejudicial abuse of discretion. Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence. 11 . (Pub.Resources Code,S21168.5; Del Mar Terrace Conservancy, Inc. v. City Council (1992) 10 Cal.App.4th 712,729).11 2 3 4 5 9 Western states Petroleum Association, v. SUDerior Court (Air Resources Boardr Real Party in Interest) 94 LADJ DA..~ 431, 432 (1/12/94). 10 Accordingly, to the extent Butler attacks the 11 determination, findings, or decisions of the Dublin city council 12 following evidentiary hearings, this Court must apply the. test of 13 whether or not the ultimate conclusions are supported by 14 substantial evidence. 15 To the extent Butler seeks to set aside, void or annul 16 the determinations, findings or decisions of Dublin on procedural 17 nonlcompliance grounds, this Court's inquiry must extend only to 18 whether there was a prejudicial abuse of discretion. I 19 F.buse of discretion is demonstrated in c. traditional 20 mandate case if the legislative actions of Dublin were arbitrary 21 and/or capricious. Administrative mandamus pertains to the quasi 22 judicial (evidentiary hearings required) functions of a City 23 Council and the test to be applied by the reviewing Court is '24 whether or not the ultimate conclusions reached by the body politic '25 are supported by substantial evidence. (See No oil. Inc. v. citv 26 of Los F.naeles. (1974) 13th Cal-3d 68,79). 27\ 28 I I I I I CEQA attacKs are therefor a hybrid, for as the Seccnd Appellate District, Div. One, said in Western Statesr supra: 6 , \ 1 I 2 4 IIUnder CEQA t S definition, however, t abuse of discretion I does not mean 'abuse of discretion. I In the wonderland of environmental review, it means the agency has either 'not proceeded in a manner required by law' or that its t decis ion is not supported by substantial evidence. I (Pub.Res.Code, ~21168.5.)" (Ibid 434). 3 5 Hopefully, the Court in reaching its decision hereinafter set out has applied the proper standard of review to each of the 6, I I 71 I 8 aspects of the Butler Petition and the Pleasanton Petition in Intervention. 9 CEOA ISSUES 10 In determining CEQA issues it is important to note at the 11 outset that the law presumes CEQA procedures/actions and 12 particularly the determination and adoption of the Final 13 Environmental Impact Report (hereinafter FEIR) to be valid and if 14 the CEQA proceedings are to be attacked, Petitioner Butler, et ale , 15 herein, must be specific in both alleging and proving the contended 16 inadequacies andlor areas of non-compliance (T.aure 1 Heiahts 17 Imrlrovement Assn. v. ReGents of the Universitv of California (1988) 18 47 Cal.3d. 376, 393; (Laurel Heigp.ts I] citv of Lomite. v. Citv of 19 Torrance (1983) 148 Cal.App.3d 1062). It is equally important ~n 20 \ considering this aspect of 'this case to keep in mind that we are 21 here dealing with a lIprogramll EIR being developed and utilized for 22 support of and In conjunction with Dublin's Zoning and Planning 23 Legislation for an area within its SOl and not yet within its city 24 boundaries, not for a development or project specific analysis 25 pertaining to the construction of public or private structures. 26 Such an ErR for long range planning and zonlng purposes lS 27 necessarily general (Vill aae LaGuna of Laauna Beach v. Ed. of 28 SUDervisors of Orance Count'! (1982) 134 Cal.App.3d 1022). It lS a 7 .1 tool In aid of informed soeculation as to where, when and hO'.oI 2 Dublin will expand into its easterly sphere of influence. over 10, 3 20 or 30 years. 4 The Court also notes and commented at the hearing hereon 5 that Butler in his Petition acknowledges that Petitioners do not 6 object to lJanylJ development in the EDPA; and while the Petition 7 i tself_ alleged a market basket full of purported defects, -.>- c:.\... 8 hearing Petitioners seemed to settle on just five areas of real 9 concern, namely: (1) water, (2) sewer, (3) traffic, (4) financing, 10 and (5) agriculture open space, plus (6) a failure to re-circulate 11 the DEIR before certifying the FEIR and adopting the GPA and S? 12 Resolutions. It is not up to this Court to subst;.itute its own 13 judgment in any of these matters but only to determine if Dublin 14 failed to follow statutory procedures thereby abusing its 15 discretion and if there is substantial evidence supporting Dublin I s- 16 findings which led to its certification of the FEIR. i 17 The purpose of an EIR is to provide information to .>-' \...ne 18 governmental body so that it may make an informed decision as to 19 whether or not a particular program, project or development should I 20 be adopted or rejected, approved or disapproved. Its purpose is 21 also to make the public aware of what is being contemplated and 22 considered by the body politic so-that th~ decision makers may 23 receive input from directly and indirectly involved and interested 24 citizenry (Pub.Res.Cd ~21061). To these ends the Public Resources 25 Code sets out certain procedures to be followed in developing the 26 EIR, affording all interested parties including the general public 27 the opportunity to cqmne~t thereon, for responses by the bcdy 28 politic, the weighing cy the governmental body of the benefits and 8 detriments of the program, project or development, to develop means 2 of mitigating any detrimental impacts, and to the extent impacts 3 cannot be rni tigated, to determine whether or not the program 4 proj ect or development s,hould nonetheless go forward because of 5 overwhelming benefits to be derived therefrom. (Pub. Res. Cd. ~21000 6, \ 7\ 8 et seq; CEQA Guidelines ~15,OOO et seq.) consider The subject project/program to long-range planning for the development of Dublin I s easterly sphere of 9 influence commenced at the behest of Intervenor Lin in March of 10 1987 and culminated on Hay 10, 1993, some six years later, when the 11 ci ty Council of Dublin certified the FEIR with addendum and adopted 12 both the GPA and the SP for the EDPA. 13 . . .. '.j... . ~nese ae~ermlna~lons, Dublin was required to To reach 14 make at least one of three findings before the project/program 15 could proceed, namely: 16 (a) Hitigation' factors have been identified and 17 incorporated into the FEIR; 18 I 19 I 20 (b) Such mitigating changes or alterations are within the responsibility of another public agency which has, can, or should adopt such mitigating factors; 21 (c) Specific economic, social or other consideration 22 make infeasible the mitigation measures identified in the EIR. 23 ("Pub.Res.Cd.~ 21081") 24 It is only necessary that the public agency base its 25 findings pursuant to Subdivision (c) above on IIsubst2.ntial evidence 26 in the record. II (Pub.Res.Cd. 521081.5). Pub.Res.Cd. 521081.6 27 further requlres Dublin to establish a reporting or monitoring 28 program to see to it that the mitigating factcrs identified are 9 . \ complied with during the period of project implementation. 2 In meeting these requirements it lS sufficient that 3 Dublin has received and reviewed consultants' reports, received <1 comments from and discussed those comments with the public from all 5 of which substantial evidence of enough relative information, and 6 reasonable inferences from the information, has been obtained such 7\ 8 that c,.. fair argument can be made to support a conclusion even though other conclusions might be reached. (CEQl>. Guidelines 9 ~15384) . 10 In the case a~ bar, Dublin more than amply met all of 11 these requirements. In addition to activities of its own Planning 12 . Department, City Engineer, city Attorney, etc., Dublin engaged the 13 services of outside consultants to prepare detailed studies of the 14 entire environmental iiUpact of the program on the SP area, the 15 whole of the EOPA, and surrounding com...",;mnities. (Adwin.Rec. VII:_ 16 1660-1661, 1677; XVII: 3369-3598; XVIII: 3719-3751, 3761, 3763, 17 \ 3775-3782 3789-3832, 3833-3862, 3941-3951/3952-4021). 18 At the outset, Dublin irivited all property owners within 19 the EDPA to directly participate in both the CEQA and the planning 20 aspects of the project. Those property OTNTIers who responded were 21 formed into an SPO co~~ittee and throughout the six years of study 22 effort actively participated in all aspe~ts:: of the program. (A-~ 23 VII: 1631-1632, 1641, 1660-1664, 1677). The SPO's also provided 24 significant financing for both private and public studies made with 25 regard to the program. 26 Numerous public meetings were held by both the Dublin 27 Planning commission ~nd the Dublin City Council. (VI: 1427; VII: 28 1718; XVI: 3597-3598; IX: 1908-1935; X: 2026-2028,2033-2040,2070, 10 2074,2099-2110,2112-2113,2116-2123, 2127-2133,2169-2174,2188- 2 3 2197; XI: 2250-2582; XIII: 2583-2736; XV: 2905-2944, 2998-3047). While neither the mere holding of meetings nor the number 4 of meetings is itself determinative of whether or not Dublin abused 5 its discretion in certifying the EIR, the fact that the meetings 6, I I 7\ 8 were held, the public did provide both written and oral comments! there.were discussions thereof among staff! consultants, commission and council members and the public, the reaction of Dublin thereto, 9 the incorporation of some of the comments and the rejection of 10 others and the approval or rejection of varlOUS suggested 11 mitigation measures, all leading to the adoption of IIAlternative 211 12 with modifications, support the conclusion that Dublin did not 13 abuse its discretion in certifying and adopting the FEIR in May of 14 1993. (XIII: 2694-2695, 2724-2725; XIV: 2805-2817; XV: 2902-2903, IS 2919-2921; VI: 1459, 146011.-1460B, 1464A-1464B, 1465-1610,1533:':" 16 1538) . 17 i Dublin properly instituted an investigation into how to 18 ! 19 ! best plan for the development of the EDPA and its easterly SOl as established by L~FCO. (VI: 1616, 1631-1632, 1660-1661, 1677). .,-.1- .1.'- I 20 I provided proper public notice and notice to all required interested 21 agencies of its intent to prepare an EIR for the GPA and SP. 22 Meetings and comments were held and received'on the scope of the 23 proposed EIR (VI: 1427; VII: 1718; XVI: 3597-3598; XVII: 3618- 24 3695) _ 25 Over an approximate two-year study period 450 pages, more various analyses, reports, etc., were prepared for and the CitY.'Council and the Planning Commissioi1. Nume::.-ous and extended joint work sessions, study sessions and public 11 2 ') ..J 4 5 6 7 \ 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 ~Q Lu I !I [I ,I meetings were held with regard to both the ErR, the GPA and the SP. (For a summary of all of these activities see Dublin's Memorandum In Opposition pages 6 through 14]. There lS no requirement that everv conjectural or conceivable alternative to the program, the EIR, and mitigating methods be explored. (Guidelines S15126(d) (5); citizens of Goleta Valley vs. Bd. of SUDerv1sors (1990) 52 Ca1.3d 553, 566; ville.oe Laauna, supra, 1022; Las viraenes Homeowners Federation, Inc. vs. County of Los l<.naeles (1986) 177 Cal.App.3d 300, 307-308). only that reasonable possibilities have been investigated and determinations made based on substantial evidence of what could likely occur over the next 20 - 40 years. Petitioners argue strongly that Dublin abused its discretion and acted cap::-iciously and arbitrarily by not taking all procedural necessary to create a supplemental EIR steps (hereinafter SEIR). I Petitioners contend that changes which were made In adopting p.lte:-native 2 with modifications constitute Ilsignificant new inforlliationll in the EIR so as to require its recirculation for public cOIilillent before certificaticn pursuant to Pub.Res.Cd.~521092.1, 2~166 and Guidelines ~~15162 and 15163. Fortunately for this Court the California Supreme Court has very recently provided guidanc:~- in what is now knO'.o/n as llLaurel Heiahts II" as follows: "We conclude that recirculation is only required when the information added to the EIR changes the ErR in a way that deprives the public of a meaningful opportunity to comment upon c substantial adverse environmental effect of the project or a feasible project alternative or mitigation neasure that would clea:-ly reduce such an effect and' t2.2.t the project I s proponents have declined to implement. ~e further conclude that a decision not to recirculate cn ErR ruust be supported by substantial evidence." 12 2 Laurel Heiahts IrnDrovement Assn. v. ReGents of the Universitv of California (No. S027252, 12/30/93) 93 L?DJ OAR 70, 71 ((1/4/94]). 3 From the foregoing it is clear that before recirculation 4 or lssuance of a supplemental EIR draft, its circulation, comment 5 thereon and inclusion within the FEIR is required, the subject 6 7\ 8 change or changes must have "a substantial adverse environmental effect" or propose a "feasible project alternative or mitigation 9 measure that would clearly reduce such an effect". (Laurel Heiahts II, supra, 71). 10 In the case at bar, Dublin considered whether or not the 11 changes in reducing the SP area, eliminating the transit ppine and 12 adopting Alternative 2 would have a "substantial adverse 13 environmental effect" on the project. (XIII: 2694-2695, 2724-2725; 14 XIV: 2805-2817). Dublin found that each of these things would have 15 a beneficial rather than an adverse effect upon the project (III: 16 1 0 Q 4 ~ 1 .L 1 4 63 14. 64. .:1.-14.64 H) . I; v'- : ~, - There is substantial evidence 17 supporting these findings and copclusions and further supporting 18 \ the proposition that ecch of the material items pertaining thereto 19 ! i had already been considered in the DEIR, the co~~ents thereon and 20 responses thereto such that nothing could be gained by preparing 21 and circulating a supplemental EIR or recirculating the DEIR. (III: 22 856; I: 369-370, 378-380; II: 533",- 711-712.' See for example those 23 portions of the Administrative Record dealing with traffic impacts; 24 I: 136-172, 144-148, 152-154, 369-370, 378-380; 11:533, 711-712; 25 26\ III: 856, 990, 992-993, 997, 998-999, 1000-1001, 1022-23; VI: 1467- 1474, 1533-1538. Si:c.ilar considerations were given to sewer, j"' ~/ agricultural, water' and agricultural impacts. Further this Court 28 lS required to resolve ~easonable doubts in favor of the J...J . \ 'I 1 administrative finding and decision not to recirculate the ErR. 2 3 (Laurel Heiahts I, 393; Laurel Heiahts 11,76). Everyone of the possible changes in the EIR had already 4 been publicly noticed and commented upon in considering the DEIR 5 and the proposed GPA and SP. To recirculate the EIR would have 6, I 7\ 8 been redundant and meaningless. Butler attacks the substance of the EIR on the additional grounds that the analysis of the impact on agriculture is 9 inadequate, that the analysis of transportation impacts, mitigation 10 measures and alternatives is inadequate; that the analysis of water 11 supply impacts, significant effects, and mitigation measures is 12 . inadequate, that the analysis of waste-water impacts is inadequate; 13 and that there was inadequate discussion of project alternatives. 14 administrati ve record discloses that Dublin The 15 considered four project alternatives: (1) no project, (2) no 16 development, (3) reduced planning area, and (4) reduced land use \ intensity. (I: 340-360). A further alternative of keeping the entire EDPA as a massive green belt was indeed not explored by 17 18 ! 10 I 'I Dublin. 20 ; Dublin's failure to do so is not fatal to the EIR as to adopt such an alternative would go even beyond consideration of the 21 alternative of "no project". A rule of reason must prevail in 22 these matters (Las viraenes,-- supra, 303-308; Guidelines 23 ~15216 (d) (5)) . 24 The record reflects that Dublin did consider the 25 agriculture impacts of the project, and applied Cortese-Knox 26 standards as to \",hen prime land can be developed. Dublin concluded 27 that there are only.~OO acres of prime land in the area presently 28 devoted to agr icul ture generating an economically unsound return of 14 1 '2 3 4 5 6, I I 7; I 8 9 10 III 12 ~ 13 14 15 16 17 only $100-$200/acre/year. (III: 854). In mitigation of the loss of the existing agricultural cum green belt areas, the ErR proposes numerous neighborhood and other parks, green belts along waterways, protection of ridge lines and visual angles, etc. (See Maps) . It is to be further noted that substantial portions of the present agricultural lands are being so utilized pursuant to provisions of the Williamson Act. Absent further administrative proceedings by the owners of these lands, as long as 10 years might still have to elapse before any of these lands could be utilized for urban purposes. (I: 86-87). Petitioners, of course, have the heavy burden of proof to . specify each and every area where it is contended that the analysis of any particular impact has been inadequate. (Mann vs. Communitv Redevelooment Aaencv of citv of Hawthorne (1991) 233 Cal.App. 3d 1143, 1151; Lomita. supra, 1069-70). Petitioners have failed to sustain this burden. The EIR assesses the significance or traffic impacts 18\ based upon a Level of Service (LOS) approach. 19 (I: 138-140). It breaks the traffic impacts down into three categories, namely: (1) 20 impacts without the program (I: 157; III: 990), (2) impacts for 21 which mitigation is feasible (III: 992-993, 995-996, 998-999, 1001, 22 1022-1023; (VI: 1467-1474) and Pi_impacts f.or which mitigation is 23 not feasible (III: 991, 997, 1000, 1022-1023; VI: 1467-1474, 1533- 24 1538). Petitioners present no evidence whatsoever to support their 25 contention that any or all of the traffic impact mitigation measure 26 studies were cursory. To the contrary, the record clearly reflects I 27\ 28 consideration of all .reasonably probable future traffic conditions I roadway improvement, financing and implementation. (I: 136-172, 15 144-148, 152-154; IT. 711-712; III: 987-1002). All of the 2 requisite Levels of Service (LOS) as well as "Transportations ') oJ Systems Management" (TSM) alternatives were thoroughly considered 4 by the City. (I: 138-140; III: 991, 997, 1000, 1022-1023). 5 It is important to remember that we are here dealing with 61 7\ 8 a long-range planning program, not a specific development EIR. The amendment to the General Plan and the General Plan in essence consti tute a constitutional framework under which specific 9 developments can be addressed in due course as they arise over the 10 It is a human, financial, legal, and practical next 40 years. 11 impossibility for us today to predict what the LOS requirements 12 will be at any given intersection 40 years from now. -All that can 13 be done is to say that--as does the Plan here in issue--that 14 certain things are reasonably foreseeable, some of these proble~s 15 can be mitigated, some cannot, and that changes in the assumptioD? 16 made will necessarily trigger future CEQA review (Villaae Laauna, 17 \ supra, 1029-1030). 18 Petitioner1s contend with regard to almost all of their 19 I 20 obj ections to the EIR, the GPF., and the SP that none of these provide for proper "phasingll of the development of the EDPF.. The 21 Court views this as a nen-sequitur. Neither the Public Resources 22 Code, the CEQA Guidelines, nor the Governm~nt Code, require, nor 23 are there any cases requiring specific parameters for Jlphasing" the 24 development of the project area. 25 Nonetheless, throughout the EIR and the SP it is implicit 26 that IIphasing" '..Jill necessarily take place. First, in a general 27 sense, geographical, p:nasing can only occur as each immediately 28 easterly and/or northerly parcel of land is annexed to Dublin. 16 Second, Pub.Res.Cd. 521166 specifically requ~res re-examination of 2 this Program ErR as ne'.... information becomes available over the next 3 three or four decades. The overall Dublin Plan requires that as 4 each step project or development comes before the City, a new ErR 5 will have to be prepared. (V: 1306; I: 55; V: 1355; Appendix 6 to 6\ 7\ 8 the SP). the that EIR contend strenuously Petitioners lS inadequate in its consideration of water, waste water and sewer 9 impacts. Petitioners are particularly concerned because much of 10 the future problems in this area necessarily involve determinations 11 by at least three other agencies [the Livermore Amador Valley Water 12 . District (hereinafter LAVWD) , the Dublin San Ramon Water District 13 (hereinafter DSRWD) and the Tri-Valley Water Agency (hereinafter 14 TWA) ] . 15 administrative record is replete with , J- ... ~ SUDs\..anl..la.l The 16 evidence that the Planning Commission and the city Council of 17 i Dublin considered in depth the infra-structure problems associated 18 with this Program EIR. Testimony was taken from and input given by 191 I 20 each of the associated agencles. The overall plan requires that as each. specific development comes along, before approval of a 21 IIwill serve" letters will be tenta ti ve map ... . gran I..ea, will be 22 required from each of the associ~t~d infra-structure agencies (V: 23 1306; Chapter 11, Implementation Plan of the SP; and various other 24 locations throughout the AR too numerous to list here). 25 Peti tioners argue that certain of the language throughout 26 the documentation is not sufficiently mandatory. For example, the 27 use of the word "shouldll instead of the word lIshallll and the word 28 "encouragell rather than the word IIrequire" with regard to the l' -. 2 3 10 11 obligations of developers to mitigate adverse environmental impacts relative to specific development projects and the EIR's which will be required pertaining thereto. 4 In the cou~se of oral argument it was pointed out that 5 "should" is defined in at least one dictionary as being an 6: I expression of "obligation or duty." (The American Heritage 7\ DictiGmary, 2nd college Edition, 1134). Further, Black I sLaw 8 Dictionary, 4th Edition, 1549 defines "should" as Ilordinarily 9 other dictionaries have similar implying duty or obligation. II definitions. Similarly, lIencourage" is defined as lito instigate or to incite to action" (Black's Law Dictionary, 4th Ed. 62,0) and is 12 deemed synonymous with the word "instigate" (Funk & Wagnalls New 13 Practical Standard Dictionary (1952) 434). Since the progran 14 "will c:,.....,.-....-IJ _ t:::::_ v t:: letters from the associated agencies requlres the 15 before a specific developwent ErR will be approved in the future, 16 thE1 net effect is the sane as if the word Ilrequirell had been used 17 instead of the word "encourage". 18 The Court therefore finds ln the context of the ErR, and 19 to the extent pertinent to the SP and the GPA, the use of "should" 20 lS synonymous with "shall" and is mandatory and "encouragell is the 21 equivalent of "require". various phasing and implementation 22 aspects of the overall program/I?~bject therefor constitute pre- 23 requisites which must be met before any specific development plan 24 will be approved and before commencement of any physical activities 25 to carry-out any such development plan. 26 27 I 281 \ I None of the associated agencies can obviously provide letters u::less . . +- . lTI a pOSl1.10D they are indeed to "will servell provide the requisite ~ater, sewage, waste water, etc., infra- 18 · 1 1 . 2 structure. The needed facilities cannot be constructed without appropriate financing. The "Implementation Plan" set out In 3 Chapter 11 of the SP (V: 1306, et seq) sets up 5 to 10 sub-areas 4 for planned development including all specifics of the infra- 5 No particular development can take place until structure needs. 6 after LAFCO has approved the service plans. Appendix VI to the 7 \ Implementation section mandates inter-action of Dublin, the DSRSD 8 and the developer. It makes provision for phasing, funding and 9 construction of the necessary infra-structure (V: 1355, et seq). 10 Specific financing problems will therefore necessarily be addressed 11 as each particular development project matures. The foregoing demonstrates that Dublin complied1with the 12 13 requirements of the Public Resources Code and the CEQA Guidelines 14 in promulgating the DElR. There was no significant impact 15 the course of finalization to requlre the developed In 16 recircularization of the EIR nor the preparation of a supplemental 17 \ EIR. The FEIR is supported in all particulars by substantie..l 18 evidence in the record. '. 19 i 20 PLANNING ISSUES The foregoing CEQA issues are so inter-twined with the 21 planning issues that they are fully incorporated herein and 22 constitute a part of the determination of the Court with regard to 23 the GPA and SP. 24 Philosophically and legally, a Genera} Plan is in effect 25 a constitution or statement of policies for the overall development 26 of a City, etc. /; a Special Plan constitutes a bridge to the zoning 27 of particular areas. within the General Plan boundaries; and the 28 \ \ Government Code mandates that: 19 1 2 3 4 5 10 11 (a) A Specific Plan shall include a text and a diagram or diagrams which specify all of the following in detail: (1) The distribution, location, and extent of the uses of land, including open space within the area covered by the plan. 6\ 7\ 8 (2) The proposed distribution, location and extent and intensity of major components of public and private transportation, sewage, water, drainage! solid waste disposal, energy! and other essential facilities proposed to be located within the area covered by the plan and needed to support the land uses described in the plan. 9 (3) Standards and criteria by which development will proceed, and standards for the conversation, development, and utilization of natural resources, where applicable. 13 (4) ]i. including proj ects, carry-out implementation measures, program, public works measures necessary to ( 2), and ( 3) . 12 program of regulations I and financing Paragraphs (1), 14 (b) The specific Plan shall include a statement of the relationship of the Specific Plan to the General Plan. (Gov.Cd.~65451) . 15 16 Petitioners a~d Petitioner In Intervention first contend 17 i that the SP is not consistent with the GP (nor the GPA) since the 18 GP requires that the S:? have no "fiscal impact upon the City of 19 Dublin nor its taxpayers. The SP, however, acknowledges that there 20 I will be .'shortfalls in the first few years of development under the SP until such time as the developments to be created start .21 22 generating sufficient tax income to fund themselves and any bonded 23 indebtednesses required to create-infra-structu=es. 24 The SP meets these claimed deficiencies by establishing 25 that Dublin has sufficient cash reserves which, if necessarv, can 26 be IIdrawn-dm.mll to fund initial infra-structure c:::-eation. ( .'\.. '\ : 27 1293 et SP Ch..10) . The plan provides that no development sea" _ , 281 shall be permitted without (1) infra-structure financing, and (2) \ 20 I 1 infra-structure availability. Development agreements with the land 2 owners can be required (SP, Chapter 10, Pages 1295, 1296i 3 Admin.Record Page 1309) including detailed financial plans. (SP 4 Page 1308). All of the analysis hereinabove set out with regard to 5 "shall", Ilshould", lIrequirell, and "encourage II , is applicable to all 6 When coupled with the financing questions under the SP. 7 \ 8 repre~entations and promlses of the DSRSD, the TWA, and the LAVWD that they will live up to their obligations to supply adequate 9 water, waste and sewage infra-structures (and the financing 10 measures necessary to carry-out these obligations) as each specific 11 development comes along, there has been sufficient compliance with 12 GC Cd.564541 (4). 13 The SP encc:upasses much more than merely res idential 14 zoning and development. It makes provision for cOThuercial, 15 industrial, professional, and other substantial income-generating 16 This Court is obligated to accept the interpretation of 17 uses. \ Dublin's city council as to the intent, meaning and effectuation of 18 its own Specific Plan (see No oil. supra) and it is a fundamental 19 I ! 20 t proposition of statutory interpretation to resolve ambiguities or doubts in favor of the statute being legal and enforceable if ~.... c.\... 21 all possible. (See SP Chapter 10, Financing, AR Pgs.1293-1304j 22 Chapter 11, Implementation, AR Pgs.1309-1310; Appendix 7, Fiscal 23 Analysis, AR Pgs.1399-1407i EIR Comments and Responses, AR Pgs.683, 24 828, 861, 863-864, 880,901; l-!itigation Monitoring Plan, Sec.3.12, 25 Fiscal Considerations, AR Pgs.1608-1610; Memo, 2/19/93, Economics 26 Pursuant to Garrett vs. Research Associates, AR Pgs.2707-2710). 27 Riverside, 2 Cal.App:4 255 and Calavaras, supra, and the foregoing 28 III 21 1 factual recital, the correlation requirements of Gov. Cd. 565451 2 appear to have all been met. 3 Peti tioners and Petitioner-In-Intervention further attack 4 the GPA and the SP (particularly the SP) on the grounds that it 5 (they) is (are) internally inconsistent. 6\ I 71 I 8 Gov.Cd.565302 sets out a laundry list of required provisions in an SP. Petitioner and Intervenor argue that the SP makes no plan for, or inadequate plans, for (1) zoning for low- 9 income housing I (2) details correlating infra-structure elements of 10 sewage, roads, and water with land use and (3) that the "will 11 serve" letters do not satisfy the SP requirements of specificity 12 set out in the Government Code. 13 While Gov.Cd.~65302 requires that a General Plan shall 14 include a housing element and Gov.Cd.565580 requires that element 151 16 to include a low-incoille housing provision, Gov. Cd. 565451 imposes no such requirement for a specific plan. The subject SP is therefore i neither inconsistent ~ith the General Plan housing ele~ent 17 18 containing a low-income housing provision nor J..S it internally I 19 inconsistent with a non-required element. 20 I Similarly, the SP is neither inadequate, incomplete, nor 21 internally inconsistent with regard to water, sewage, etc., insofar 22 as Gov.Cd.565451 does not require._any specificity with regard to 23 those matters to the extent they are outside of the area covered by 24 the plan. (Gov. Cd . 565451 (a) (1) , (2) , (3) , (4) ) . 25 Nonetheless, the SP discusses all of those matters in 26 detail J..n Chapter 8, Table 6, Appendix 6, AR 1212, 1291 and 1280, 27 all as supplemented bv various facilities mans in the SF. 28 //1 22 I' 2 3 10 11 12 From all of the foregoing the Court finds that there is substantial evidence to support the GPA and the SP, that they are consistent Hi th each other and with the GP I that they are not <1 internally inconsistent and that there is no evidence whatsoever to 5 indicate that Dublin acted arbitrarily nor capriciously in adopting 61 7 \ .are broad-ranging 'planning tools which will hopefully be beneficial 8 over a span of 30 to 40 years and all reasonable possibilities were the GPA and the SP. Neither of these are project specific, they 9 discussed and reasonable solution determined as could be without a crystal ball. CONCLUSION The Court accordingly concludes and states itsl decision 13 that the Petition and the Petition-in-Intervention are denied. 14 The foregoing shall constitute the statement of Decision 15 of the Court unless any party hereto requests further proceeding? 16 with regard thereto as provided by law. In the event such request 'is\made, counsel for Respondent city of Dublin shall prepare the 17 18 statement of Decision. 19 I I 20 DATED: 21 22 23 24 25 26 27 28 MAR 1 8 1994 HARlAN K VEAl.. JUDGE OF THE SUPERIOR COURT 23 I ~ ~ iCU \IIIiIlII/ - ~ lUaCI 1'\ -- cod'\'(' a c.u..\~'''~ eol'\t;....--- c31 C .,-""... .....~\i(f\1t . "" ................ '" "" ..~."'" z ~ " ~ ~_ 1.500 =-- ---- -~". i :n 0. }--l OJ OJ Flaure 3.3-A Existing 1992 Daily Trallic Volumes SOlJnces: Callrll1l clly 01 o..tllll1 OKS ,l.llocllUI Tlllllo Counll, 1000 Il1d 1001 sounc!:: OKS A"oell,"' ~ ~ ~ 'm t~ ~ tsmll lD! (Jm:l/5 ~ JIli - ~ie \. ........\~ . ...... .. ..... ./ to.. ..... / :' / ~. I ".. 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(\ , t AFFIDAVIT OF l1AILING Case No. 385533 DOCU}fENT: Mill10RANDUM OF DECISION I declare under penalty of perjury that on the following date I deposited in the united states Post Office mailbox at Redwood city I a true copy of the foregoing document, enclosed in an envelope, with the proper and necessary postage prepaid thereon, and addressed to the following: Owen Byrd, Esq. 112 New Montgomery, ste. 640 San Francisco, cA 94105 stuart Flashman, Esq. 5626 Ocean View Drive Oakland, CA 94618-1533 Elizabeth H. Silver, Esq. Rick W. Jarvis, Esq. Gateway Plaza 777 Davis st., Ste. 300 San Lenadro, CA 94577 Dennis C. Beougher, Esq. Asst. city Attorney 123 Hain Street P. O. Box 520 Pleasanton, cA 94566 Marthb W. Inderbitzen, Esa. 5000 Hopyard Road, ste. 400 Pleasanton, CA 94588 Executed on MAR 1.:) 1994 at Redwood city, California. Ken Torre, Executive Officer/Clerk By ~.RA ~..ARCOPULC'S Deputy