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HomeMy WebLinkAboutMINUTES - 08052003 - C.46 TO: BOARD OF SUPERVISORS Contra FROM: CAYLE B. UILKEMA, SUPERVISOR � �Y Costa District Il ,.. County �.{,�. DATE: August 8, 2003 SUBJECT: Proposed Letter to the City of Lafayette Planning Commission Regarding the Pendini Hidden Oaks Development Tract 8438),in the Sarana area District II SPECIFIC REQUEST(S) OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATION RECOMMENDATIONS AUTHORIZE the Chair of the Board to sign a letter to the Chair of the City of Lafayette Planning Commission transmitting concerns regarding possible action on the proposed Hidden Oaks Development project by the City of Lafayette. (Attached as Exhibit "A") FISCAL IMPACT: None CONTINUED ON ATTACHMENT: X YES SIGNATURE RECOMMENDATION OF COUNTY ADMINISTRATOR _RECOMMENDATION OF BOARD COMMITTEE APPROVE OTHER SIGNATURES : ACTION OF BOARD ON „tet 5 2003 APPRFV'9D AS RECC)MMENDEC! ,_OTHER VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A TRUE AND X UNANIMOUS(ABSENT Nana j CORRECT COPY OF AN ACTION TAKEN AND AYES: NOES: ENTERED ON THE MINUTES OF THE BOARD OF ABSENT: ABSTAIN: -- SUPERVISORS ON THE DACE SHOWN Contact: sd ATTESTED August S, 2003 cc: Community Development(COD) JOHN SWEETEN, CLERK OF THE BOARD OF County Administrator SUPERVISORS AND COUNTY ADMINISTRATOR County Counsel `� `° � Public Works BY ."'.` � � � � s � ,DEPUTY August 5, 03 Board of Supervisors File#SD 8438 Mage 2 BACKGROUNDIREASONS FOR RECOMMENDATIONS Contra Costa County has closely followed the City of Lafayette's actions in regards to the processing of this 23-lot project, which includes areas within the City and areas under the land use jurisdiction of the County. Many residents of the unincorporated area have complained that they may be the recipients of the project's traffic while the new residential development occurs within the City. As comments on the two past Draft EIRs for this project, County staff has sent two letters (attached as Exhibits raga and "C") to the City of Lafayette dated May 14, 2003, for the Re-circulated DEIR and November 29, 2001 for the original DEIR. These letters paint out deficiencies in the CEQA reports and recommend that alternate action be taken. Nevertheless, the City's Planning Commission has directed staff to present it with a 21-lot project alternative that will include a road access onto Kinney Drive in the unincorporated area. This preferred alternative would require the granting by the County of an Encroachment Permit and a Tree Permit in the unincorporated area of the site. Traffic-calming mitigations that do not meet County standards are proposed on streets within County jurisdiction. Sending the letter to the City of Lafayette is necessary and desirable to protect the residents from traffic where there are existing substandard traffic conditions. The new project street intersection would not meet Caltrans standards for sight distance. I have received many letters, calls, petitions and emails from District 2 residents objecting to the project's impacts. The Board of Supervisors Contra John sweeten Clerk of the Board County Aclrrlirristtationiiding Costa and County County Administrator 651 Pine Street,Room 106 County (925)335.1900 Martinez,California 94553-4068 John Oulu,District I Gayle R Vilkkema,District Ii Milne Greenberg,District Ili Mark Desaubder,District IV Federal D.Clover, District V (925) 335-1210 S��bSJh� August 5, 2043 Karen Maggio, Chairperson, City of Lafayette Planning Commission c/o Lafayette Planning Services Division P.U. Box 1968 Lafayette, CA 94549 Re: Contra Costa.. County Board of Supervisors' Concerns Pertaining To the Adequacy of the CEQA Process as Applied to Possible City of Lafayette Action on the Hidden Oaks Subdivision,Tract 8438 Dear Chairperson.Maggio and Members of the Commission: I am forwarding this letter to you on behalf of the:Board of Supervisors because of the concerns we have with the way the above referenced project appears to be progressing. Contra Costa County staff has closely followed the City of Lafayette's actions in its processing of this project, as it includes areas under the land use jurisdiction of this .Board. County staff has commented on the original DEIR for this project in its letter sent to the City of Lafayette dated November 29,2001 and on the Re-circulated DEIR in its letter of May 14,2003. As was stated in our prior responses to the DEIR, Contra.Costa County is a responsible agency under CEQA with discretionary approval over important aspects of the project, including the use of a residential lot on Kinney Drive as the site of an access road to the project. This access to a public street occurs within an area under the jurisdiction of Contra Costa County, Additionally, in order to install this Kinney Drive access road,the project plans show the removal of several oak trees and significant grading,primarily cut, occurring under the drip lines of other trees. The trees qualify for protection under the County's"Tree Protection and Preservation Ordinance.The proposed grading and tree removal may only occur if a discretionary Tree Permit is applied for through,and approved by the County Community Development Department. Furthermore,various suggested traffic and noise mitigations being proposed occur within the jurisdiction of Contra Costa County. While not necessarily inclusive of all the County concerns,the following list summarizes areas where our staff advises that the documents and process followed by the City of Lafayette do not comply with the California Environmental Quality Act: 1 Cultural Resources: The Response to Comments for this impact glosses over the concerns raised. There appears to be almost total reliance on the applicant's archaeological consultant. This would be in conflict with Guidelines Section 15084(e),which requires that the DEIR sent out for public review reflect the independent judgment of the lead agency. That is why our comment letters have asked for a peer review of the cultural impacts section. The project site contains one of the more significant Native American village sites in Contra Costa County. It has been identified as a significant site since 1913 (CA-CCU-235). The applicant's consultant in documents dated June 29,2000 and October 17,2000 identifies the site as a resource of historical significance. CA-CCO-235 has been identified as an intensively occupied village site from approximately 1400 AD to the late 1740s.Numerous human remains and cultural artifacts have been found historically and as part of the current consultant's surface and sub-surface investigation. The June 29, 2000 Archeo-tec letter states"a variety of prehistoric cultural materials was observed on the surface of the ground at CA-CCO-235". In spite of that, the mitigation measures are based on the assumption that significant cultural resources will only be found lower than 3 feet from the surface. The proposed Cultural Impact mitigation measures do not appear to be effective or accurate. The Response to Comments document asserts that the development in the archaeologically sensitive areas would occur only on fill except for trenching, and that the trenching would be monitored. While relying only on the applicant's consultant,there is no way to verify the accuracy of this assertion. That is why County staff strongly recommended that the City perform a peer review of the Cultural Resources section by its own qualified archaeological specialist, including assessment of the feasibility of the mitigations and the efficacy of the project alternatives. Sight Distance at New Road and Kinney Drive: As explained in previous correspondence,the sight distance for vehicles emerging from the proposed access road looking to the south, and for northbound Finney Drive traffic approaching the new intersection is substandard because of the sharp curve in Kinney Drive just south of the project driveway. A sight distance of only 145 feet is available. This site distance would be reduced further when blocked by parked cars. The Draft EIR states that based on Caltrans design standards, a sight distance from 125 to 150 feet is needed. The Re-circulated DEIR stated(Page 4.4-22)that there will be adequate sight distance. This statement is in conflict with the data provided. The reference(footnote#14)does not support this conclusion nor does the accompanying table. Table 4.4s-4 shows that the 856' Percentile Speed 150 feet south of"project access" is 25.4 mph. This number would generate the 150 foot sight distance figure where there is only 145 feet or less available(depending on parked cars). The addition of project traffic where there is inadequate sight distance should be reflected as a significant impact. Instead,the Response to Comments author(Mage 3-1)attempts to refute their own DEIR, by stating that drivers really would not be traveling at the speed previously stated because they would be decelerating as they enter the Finney drive curve. While deceleration unquestionably occurs at a tight turn,that deceleration would have already been reflected in the existing speed analysis. This Response to Comments conclusion conflicts with the empirical speed data provided in the DEIR. Page 2 Encroachment Permit: Access to Finney Drive would require the approval of an Encroachment Permit from Contra Costa County,which is a discretionary decision. The applicable County Ordinance Code Section (1002-2.016) provides for three findings or criteria that must be met for an Encroachment permit to be granted: 1. That the applicant will be substantially damaged by the refusal to grant the permit as requested; 2. That no other reasonable method of obtaining the desired results is available except as proposed by the applicant; and 3. That the granting of the permit will not be materially detrimental to the public interest, safety,health, and welfare or injurious to ether property. Since Contra Costa County as a responsible agency must make a discretionary decision regarding the granting of an Encroachment Permit,the Elft must provide sufficient data and analysis in order to adequately consider the future permit. However, for the reasons cited above under sight distance at the intersection of the new road and Kinney Drive, the CEQA documents do not provide support for the granting of an Encroachment Permit because of the inadequacy of the sight distance. The county's ability to make the second finding is contradicted by the inclusion in the Final EIR of the Environmentally Superior Alternative, which states that Alternative 6.23 (18 units with only Leland access) is identified as the environmentally superior alternative. DEIR.Traffic Mitigations: The recirculated DEIR acknowledges that the traffic impacts on Kinney Drive are significant under CEQA. Proposed mitigations include that the impacts be reduced by the implementation of various traffic-calming.measures including speed humps,curb extensions at intersections,raised crosswalks and additional stop sign controls. Even with these mitigations,the DEIR states that the impacts would not be reduced to a less than significant level. However,the most probable traffic calming measure is speed humps. The Contra Costa County Road.Engineering Standards do not permit speed humps or bumps on public streets as there is no standard established for such devices by the Manual of Official Traffic Control Devices distributed by the Federal Highway Administration. As such,this mitigation measure is not feasible. The other potential traffic- calming mitigations are not specified nor agreed to by the County. Additionally, the City of"Lafayette apparently proposes a trail with access on Kinney Drive. Discussion of this aspect of the project has not been analyzed nor considered in EIR documents. Consequently,the impact of automobile parking on Kinney Drive by trail users and subsequent mitigation on a substandard county residential neighborhood road has not been analyzed. Section 15093 of the CEQA Guidelines states that no public agency shall approve or carry out a project for which an EIR has been certified which identifies one or more significant environmental ef'f'ects unless findings are made. Mitigation measures are required to be fully enforceable through permit conditions, agreements or other measures. When Statements of Page 3 Overriding Conditions are made,they must be supported by substantial evidence in the record. It appears that the required findings cannot be made at present because the mitigations are not enforceable. Tree Permit: The November 29, 2001 Contra Costa County comment noted that the access road from Finney Drive to the new subdivision would be within the drip line of a significant grouping of trees, and a tree permit is therefore required. According to the DEIR and project plans,roadwork and significant grading(more than four feet of cut) for the entry road would pass under the drip line of at least three oaks along the left(south) side of the entry road. At least one oak would be completely removed. 'These trees are subject to the County's discretionary tree protection regulations. The purpose of the EIR is to provide sufficient data and analysis for the approving agencies to make decisions, informed about the potential, significant environmental effects of proposed activities(CEQA Guidelines, 15002—a-1). Since Contra.Costa County as a responsible agency must make a discretionary decision regarding the granting of a Tree Permit,the EIR must provide sufficient data and analysis in order to adequately consider the future permit. The EIR documents do not adequately describe the impacted trees,their health, details of the grading at a meaningful scale,nor an analysis of alternative locations and widths of the proposed entry road. As such the EIR is inadequate to allow Contra Costa County to make an informed decision. Construction Conditions of Approval: According to our current understanding, the primary access to the project is designated by the City of Lafayette as Leland Drive. Access by Leland Drive should also be specified for all construction traffic. Specifically, Finney Drive is not to be used for project construction access. We support the mitigation measure of limiting construction hours and restricting work to weekdays(Mitigation Measure 4.5-3). Please beep in mind that Contra Costa.County is a Responsible Agency under CEQA and as such has discretionary approval over important aspects of the project. We acknowledge and appreciate that both public agencies and the public have expended a great deal of effort in reviewing this project. However, we continue to be concerned about the proposed use of Finney Drive as a vehicle access and about the apparent inadequacy in regard to CEQA requirements outlined above. Sincerely yours, i Mark eSaulnier Chairman Board of Supervisors cc: .Members Board of Supervisors Page 4 Clerk of the Board Dennis Barry, Community Development Director Heather Ballenger, Public Works Department Linda Wilcox, County Counsel's Office xinmeyDrEIR etted-s-o3 Page 5 AICP Barry,Community Contra Community Development Director DevelopmentCosta- Department Counv County Administration Building 651 Pine Street i 4th Floor,North Wing Martinez,California 94553-0095 Phone: (925) 335-1210 May 14, 2003 Karen Maggio, Chairperson, City of Lafayette Planning Commission c/o Lafayette Planning Services Division P.O. Box 1968 Lafayette, CA 94549 Re: Comments on Draft Recirculated Environmental Impact Report for Hidden Oaks/Kinney Drive, Subdivision,Tract 8438. Dear Chairperson Maggie and Members of the Commission: Thank you for the opportunity to comment on the Draft Recirculated Environmental Impact Report for Major Subdivision Tract 8438 (hidden Oaks). As was stated in our response to the prior EIR dated November 29, 2001, Contra Costa.County is a Responsible Agency under CEQA with discretionary approval over aspects of the project, including one of the primary entry roads, Finney Drive. As explained in previous correspondence, the use of the Kinney Drive access would require the County's discretionary approval of an encroachment permit and a tree permit. Specific Comments on the Draft Recirculated Environmental environmental Impact Report: Access Alternatives: The Recirculated EIR appears to acknowledge that, at the least, the eastern half of the historical 50-foot Leland Drive easement has not been abandoned or relinquished and would be available for access. A split access alternative would require approval of using the residentially zoned Finney Drive lot as a street, including the requirement to obtain from the County an encroachment permit and a tree permit. The use of Kinney Drive as an access would introduce traffic at a new intersection where there is marginal to inadequate sight distance. In addition to conflicts with the CC&Rs which may preclude the use of that lot as a street, an encroachment permit and a tree permit, which are discretionary permits, would be required. The City should be aware that the County may not be able to mare the required findings necessary to grant these permits. Cultural Resources (4.9-1): This appears to be the most seriously deficient section of the various identified impacts and proposed mitigations. The subject site is one of the more significant Dative American village sites in Contra Costa County. It has been identified as a significant site since 1913 (CA-CCO- 235). The applicant's consultant in documents elated June 29, 2000 and October 17, 2000 Office Hours Monday- Friday: 8:00 a.m. -5:00 p.m. nffira is rinearl tha 1 et ''4rr4 X rth Prir-iauc of warh mnnth identifies the site as a resource of historical significance. CA-CCO-235 has been identified as an intensively occupied village site from approximately 1400 AD to the late 1700s. Numerous human remains and cultural artifacts have been found historically and .from the current consultant's surface and sub-surface investigation. Even with the indicated Phase 2 sub-surface sampling described as 73, two square meter auger sites, and the Phase 3, 17, two-square meter hand excavated exploratory units, less than one half of one percent of the 14-acre site would have been actually subject to subsurface investigation. The June 29, 2000 Archeo-tec letter states that"a variety of prehistoric cultural materials was observed on the surface of the ground at CA- CCU-235". In spite of that, the mitigation measures are based on the assumption that significant cultural resources will only be found lower than 3 feet from the surface. The proposed Cultural Impact mitigations do not appear to be effective or accurate. The DEIR asserts (page 4.9-5) that the development would occur only on fill except for trenching, and that the trenching would be monitored. The proposed vesting tentative snap shows a combination of both cut and fill throughout the site with generally the house pads occurring on fill for improved drainage,but the yards, roads and swales are often occurring on cut. The:mitigations proposed do not seem to take into account that in order to balance the grading on site, there must be approximately as much cut as fill. Thus the implied mitigation of leaving the historical and archaeological resource intact ("undisturbed and preserved" according to Archeo-tec, the applicant's cultural consultant) would not be effectively implemented.. Dots 1, 21, &23 show cut greater than 3 feet. The proposed entry drive from Kinney Drive has cuts over 4 feet in depth. The applicant's consultant (Arched-tec) appears to have adequately identified and analyzed the cultural and historical significance of the site, but the follow-up treatment of the resource and the proposed mitigations do not adequately reflect the significance of the site. Evidence should be provided that the numerous and varied layout alternatives took into account the specific locations of the more significant archaeological remains. We strongly recommend that the City have a peer review of the Cultural Resources section completed by a qualified archaeological specialist, including the mitigations and the alternatives, prior to certification of the Final EIR. It may be that a greater amount of fill will need to be brought in to actually provide the degree of nondisturbance and preservation that is described to occur with the presently proposed mitigations. Alternatively, a greater degree of avoidance could occur if other project alternatives were employed including a smaller lot P-1 approach that the County had suggested in its original October 2001 comment letter as follows: A planned development that truly clusters the homes, with significantly greater buffers from the creeks and from adjacent neighbors, as well as greater tree retention, should be provided to meet this requirement (for a P-1 alternative). Such an alternative should employ smaller lots such as 10,000 sq. ft. developed with smaller homes, compatible with those that currently exist in the Kinney Drive or Leland Drive areas. Transportation/Circulation: Existing�Conditions, Setting, page 4.4E-1: The document states that none of the local residential streets have sidewalks. Please nate that Leland Drive has a nearly continuous sidewalk from Meek Place to told Tunnel Road. 2 Missing Traffic Gaunt: The list on page 4.4-3 of intersections to be studied includes the intersection of Meek Place and Caroline Court. However, the following study results on figure 4.4-1 omit that intersection. Sight Distance at New Road and Kinney Drive: As explained in previous correspondence, the sight distance for vehicles emerging from the proposed access road looking to the south, and for northbound:Finney Drive traffic approaching the new intersection is substandard or marginal because of the sharp curve in Kinney Drive just south of the project driveway. A sight distance of only 145 feet is available. This site distance would be reduced if blocked by parked cars. The Draft EIR states that, based on Caltrans design standards, a sight distance from 125 to 150 feet is needed.. The new document again states (Page 4.4-22) that there will be adequate sight distance. This statement is not correct. The reference (footnote #14) does not support this conclusion nor does the accompanying table. Table 4.4-5 shows that the 85`' Percentile Speed 150 feet south of"project access" is 25.5 mph. This number would generate the 150 foot sight distance .figure where there is only 145 or less (depending on parked cars) available. The inadequate to marginal sight distance should be reflected as a significant impact. Traffic Thresholds of Significance: The Draft EIR. utilizes as a standard of significance, a change of 0.1 under the T.I.R.E. Index (Traffic hifusion on Residential Environments). The impact analysis reveals that traffic increases to the narrow Kinney Drive would have greater impacts than that which would result from the use of Leland Drive. The use of 14.2 trips per unit per day as the trip generation rate is higher than what is generally used. Presumably the City of Lafayette has current, empirical data to support the use of this rate. That data should be provided. Land Use Compatibility{4,1-3B}: The EIR writer assumes that the two lots along side the proposed Kinney Drive entrance drive would be the only lots affected by headlights. If the access to Kinney Drive was to be approved by the County, the lot on the east side of Finney Drive opposite the applicant's proposed new entry road,would also be impacted by headlights. Noise Impacts {4.5-3}; The Department commented in our previous correspondence that a 7:00 a.m. start time for construction would create a significant noise impact at adjacent residential properties. This is particularly important in an infill situation. We recommend that the mitigation measure be revised to limit construction activity such that it does not begin until after 8:00 a.m. Public Services: Fire 4 7-1}: The subject property is described as being more that 1.5 miles from the nearest fire station and additional mitigations are proposed. It is approximately 1.2 miles from the fire station located at 3338 Mt. Diablo Blvd. to the site assuming the Leland Drive 3 access. It appears that the EIR authors were not considering the closer Leland Drive access. The second closest fire station to the site is the Tice Valley Road station,not the St. Mary's Road station as identifiers by the DEIR. School {4.7-2): The mitigation measure regarding school support services is described as voluntary, and therefore would not qualify as mitigation under CEQA.. Mitigation measures must be fully enforceable through permit conditions, agreements or other legally binding instruments (refer: CEQA Guidelines ,Section 15126.4 a-1-D-2). If the Final EIR were amended to require this contribution, then it would qualify as a mitigation. Biological Impacts: Tree Impacts: With so much uncertainty as to grading, layout options, and tree survivability, specifying a number of trees to be replaced is premature. Rather than specify the number of trees to be replaced if lost. a 3:1 tree replacement ratio would be more effective. Non-native vegetation in riparian zone: The proposed mitigation of requiting a Don't Plant List to be contained in the CC&Rs would not be enforceable by the City. Since CC&Rs may be modified by future homeowners, it cannot be assumed that the mitigation measure can be fully implemented as described. The Final EIR should identify additional mechanisms to ensure the successful implementation of this measure (e.g. design review of the landscape .plan for riparian lots with a subsequent Landscape Maintenance. Agreement containing the .Don't Plant fist supplemented with a deed restriction to provide adequate notice to future property owners). Alternatives: It should be pointed out that even if there were only 25 feet of the former 50-foot easement available, that there would still be as much width available for a paved street, without ono-street parking, as the current paved width of Kinney Drive (22-23 feet) where parking is allowed. There would also be less traffic than currently exists on Kinney Drive. The cross-sections in Figure 6.7-3 also provide for a 1.53 foot wide shoulder on both sides of the two travel lanes. A single 3 +/- foot shoulder on one side would provide a little more pedestrian separation. Regardless of the final geometries, the conclusion is that the use of the Leland Drive easement is feasible and would not produce significant environmental impacts that could not be mitigated. If more than 25 feet of right-of-way can be obtained, the overall road standard could increase, particularly by providing better pedestrian access. Tree Permit- The November 29, 2001 Contra Costa County comment noted that the access road from Kinney Drive to the new subdivision would be within the drip line of a significant grouping of trees, and a tree permit is therefore required. According to the DEIR and project plans, roadwork and significant grading {more than four feet of cut) for the entry roars would pass under the drip line of at least three oaks along the left (south) side of the entry road. At least one oak would be completely removed. These trees are subject to the County's discretionary tree protection regulations. 4 Encroachment Permit: Access to Kinney Drive would require the approval of an Encroachment Permit from Contra Costa County, which is a discretionary decision. The applicable County Ordinance Code Section (1002-2.016) provides for three findings or criteria that must be met for an Encroachment permit to be granted: 1. That the applicant will be substantially damaged by the refusal to grant the permit as requested; 2. That no other reasonable method of obtaining the desired results is available except as proposed by the applicant; and 3. That the granting of the permit will not be materially detrimental to the public interest, safety,health,and welfare or injurious to other property. DEIR Traffic Mitigations: The recirculated DEER. acknowledges that the traffic impacts on Kinney Drive are significant under CEQA. Proposed mitigations that the impacts be reduced by the implementation of various traffic calming measures including speed humps, curb extensions at intersections, raised crosswalks and additional stop sign controls. Even with these mitigations, the DEIR states that the impacts would not be reduced to a less than significant level. However, the most probable traffic calming measure is speed humps. The Contra Costa County Public Works Department does not permit speed humps or bumps on public streets. As such,this mitigation measure is not feasible. Section 15093 of the CEQA Guidelines state that no public agency shall approve or carry out a project for which an EIR has been certified which identifies one or more significant environmental effects unless findings are made. Mitigation measures are required to be fully enforceable through permit conditions, agreements or other measures. When Statements of Overriding Conditions are made,they must be supported by substantial evidence in the record. We hope these comments are beneficial to your review of the project. Please beep in mind that Contra Costa County is a Responsible Agency under CEQA and as such has discretionary approval over important aspects of the project. We acknowledge and appreciate that there was a major rewriting of portions of the EIR, particularly dealing with alternate site access, alternate layouts and densities, traffic and noise impacts and hydrology. We continue to be concerned about the feasibility of the mitigation measures for impacts related to the use of Kinney Drive as a vehicle access. 5 Please keep the Contra Costa County Community Development Department and the Centra Costa County Public Works Department informed as to the status of the project review. Sincerely, Catherine Kutsuris Deputy Director cc: Dennis Barry, Community Development Director Saranap Homeowners Association Heather Ballenger,Public Works Department Michael Henn,Planning Consultant Linda Wilcox, County Counsel's Office KinneyDrEIRLetter5-03 6 C.C)mmuni Contra Dennis M.Barry„AIGP Dave€op> en1 Community Development Director Costa Department L . �\ O� County Administration Building CountY I Pine Street ,,n Floor, North Wing Martinez, California 94553-0095 Phone: 925-335-1210 November 29, 203031 Chairperson, City of Lafayette.Planning Commission c/o Lafayette Planning Services Division P.C, Box 1968 Lafayette, CA 94549 Re: Comments on Draft Environmental Impact Report for Kinney.Drive Subdivision, Tract 8438. To Whom It May Concern: Thank you for the opportunity to comment on the.Draft EIR for Major Subdivision Tract 8438. Contra Costa County has concerns regarding the impacts of the project on the adjacent unincorporated neighborhood. The County previously notified the City of Lafayette that the County is a Responsible Agency pursuant to Section 210369 of CEQA. This is also acknowledged in the:Initial Study. Having reviewed the DEIR, County staff believes the DEIR fails to address the County's position as a Responsible Agency. The DEIR also fails to adequately address several identified impacts and omits consideration of alternatives that would reduce project impacts on the adjacent neighborhood. County staff has the following concerns that should be addressed further in the EIR: 1. Finney Drive Access The legality of using the Finney Drive lot as project access,relative to any CC&Rs that may apply to this lot,is relevant to the CEQA analysis,but has not been addressed in the DEIR. If this access were contested and the plaintiffs prevailed, an alternate access would need to be provided and that access would be subject to CEQA review. While it is understood that neither the City nor the County would be bound by CC&Rs, it is appears illogical for the DEIR to dismiss a potential Leland Drive or Carolyn Court access because that access may be contested as a violation of CC'rRs, but 1 Office Hours Monday-Friday: 6:00 a,m.-5:oo p.rn. Office is closed the 1 st, 3rd& 5th Fridays of each month City of Lafayette Planning Commission November 29, 2001 then not question the:Money Drive access, which may also be contested for similar reasons. The EIR should thoroughly and objectively discuss and evaluate Leland Drive, Carolyn Court and any other potential access routes. a. Encroachment Permit: If access were to be via Kinney Drive, encroachment permits would be required from Contra Costa County. The applicable County Ordinance Code section (100242.016)provides for three criteria that, if met, would require an encroachment permit to be granted: 1. That the applicant will be substantially damaged by the refusal to grant the permit as requested; 2. That no other reasonable method of obtaining the desired results is available except as proposed by the applicant; and 3. That the granting of the permit will not be materially detrimental to the public interest, safety,health, and welfare or injurious to other property. It is uncertain whether any of these findings can be made with respect to the Kinney Drive access. For this reason,the County may exercise its discretion and deny such permits, thus blocking this access. The EIR should discuss and evaluate this issue. b. Tree Permit. The access road from Finney Drive to the new subdivision would be within the drip line of a significant grouping of trees, and a tree permit is required which is a discretionary permit. A denial of the permit would appear to block development of that access road as proposed. The EIR should discuss and evaluate this issue. C. Alternative Access: There is a major problem in the alternatives section (Chapter 6.1). The Initial Study(VI. A)identified the study of alternative accesses as part of the scope of the EIR. The Centra Costa County Community Development Department,commenting on the Notice of Preparation, specifically asked in its January 4, 2001, letter to the City that the"DEIR should analyze at an equal level, the useof Leland Drive as an access roadway for the proposed subdivision." The DEIR did not provide the requested project alternative using a northern access, instead discarding it with a statement,based on information provided by the applicant,that access to the north is legally questionable because of disuse and encroachments (pages 2-7, 4.4-14, and 6-1). The DEIR therefore does not respond to a significant impact identified in the scoping process and ignores the specific request by the County. CEQA requires a reasonable range of potentially feasible alternatives that would avoid or substantially lessen significant impacts of the project. There is no reason to accept the argument that access from the north should not be analyzed because legal access might be 2 contested. The CEQA process should depend on facts. No formai or judicial action has been identified that extinguishes this napped and recorded easement, which extends from the subject property to the public portion of Leland Drive. To the contrary, it would. appear that the Leland give access is a recorded access that runs with the land, whose benefits accrue to the project applicant and to the public. Some fairly significant warding appears in the language regarding the easement that runs along the rear of the lots on the west side of Carolyn Court. "If the 50 foot easement across the rear of lots 10, 11, 12, 13, 14, 16, 16,and 17 is ever desired-for a:county road, the owners of said lots for themselves and on behalf of their successors-iii interest, agree to deed their interest in said easement to the county."The DEIR does not analyze or acknowledge this apparently controlling language in the access discussion. Even if there were no existing legal access to Leland Drive, Government Code section 66462.5 provides that a City may require an off-site access and/or improvements over land that the developer does not own. If the developer is not able to secure the off-site access,the City would be required to use its power of eminent domain to obtain it. This can be done at no cost to the City because the cost will be borne by the developer. Consequently, the purportedly questionable access to Leland Drive is not a valid reason for the DEIR to fail to consider an alternative using this access. As alternative or supplemental access,the EIR should thoroughly and objectively discuss and evaluate Leland Drive,Carolyn Court and any other potential access routes. It is noted that the predominant direction for traffic generated by the subdivision would be north, west,or east, but not south. However,with only the Kinney Drive access, the traffic must exit to the southeast and circle back through the general area to get to Condit and Pleasant Hill roads, Highway 24 and BART, as well as to the schools that serve the area. If an additional access to the north via Deland Drive or Carolyn Court were provided,it would minimize neighborhood traffic by significantly shortening travel time and distance. The ETR should discuss and evaluate this issue. d. Pedestrian Safety. The Initial Study(VI-e) as well as public testimony identified increased hazards to pedestrian safety as an impact. The Planning Commission asked for a thorough analysis of such traffic safety issues. The DEIR does not address pedestrian safety to any extent. The City's Circulation Commission staff report dated November 13, 2000,recommends the provision of walkways and traffic calming devices. Requiring improved onsite and off-site walkways as mitigations would improve pedestrian safety. An adequate study of pedestrian safety in the EIR is particularly important,considering the existing narrow 23 +/-foot paved width of Kinney Drive and the lack of walkways. A rural standard walkway may be designed which is compatible with the character of Kinney Drive. Increased pedestrian safety increases pedestrian usage and consequently reduces traffic generation. The EIR should discuss and evaluate this issue. 3 City of Lafayette Planning Commission November 29, 2001 e. Sight Distance: The DEIR.characterizes sight distance at the new entry road and Kinney Drive(page 4, 4-6) as not a significant impact, but provides no adequate explanation or substantiation. It is our understanding that when questioned by the City's Circulation Commission, the EIR traffic consultant modified the critical vehicle speeds. The desired sight distance to the south is now recommended to be 125-150 feet for the existing vehicle speeds. The provided sight distance is only 145 feet for this direction (northbound Kinney Drive vehicles approaching the new entry street). Given the closeness of these two numbers, the DEIR should have characterized the sight distance as marginal and should have provided a more thorough analysis with a detailed, to-scale drawing illustrating this matter. N itigations and alternative designs should be provided. The existence of substandard or marginal sight distance is another reason to look at alternative access. The EIR should discuss and evaluate this issue. 2. Failure to Provide Listing of Cumulative Traffic Impacts The DEIR(page 4.4-6)states that an accompanying chart described as'fable 4.4-3 will list the approved and pending projects in the area. The actual 'fable 4.4-3 is a table of traffic generation ratios used., not a listing of projects. The EIR should address this discrepancy. 3. Cultural Resources Section 4.9,dealing with Dative American artifacts and remains, appears to be thorough and well done. Native Americans had occupied the site for several centuries. It is understood that it is not in the public interest to be too explicit as to where these culturally valuable materials may be found. Nevertheless, the mitigations proposed appear routine and do not seem to reflect the significance of the resources. Can-site monitoring during construction is recommended. It should be clear that this condition of approval would apply to all phases of subsurface disturbance, including not only construction of houses but also, for-example, excavations for swimming pools. Additionally, there should be a mitigation to require informing and educating future property owners as to the importance of the cultural resource and to the relevant laws dealing with subsequent subsurface disturbance of artifacts and remains. A CC&R should similarly advise future owners of the situation. The EIR should discuss and evaluate this issue. 4. I1Iis-Identifying the Carolyn Court Area as R-20 Zoning The DEIR (page 3-1) identifies Carolyn Court as R-20 while the accompanying zoning neap shows the area as R-10. The DEIR's statement, "With the exception of the houses on Kinney Drive, the proposed project would be consistent with the zoning in the neighborhood," is incorrect. The importance of this error relates to neighborhood compatibility. The proposed large homes on large lots may be more compatible to the R- 20 areas to the south and west, but potential access from those directions is unlikely 4 compared with access from the north and east, which are R-10 areas. The EIR should discuss and evaluate this issue. 5. Planned District Alternative CEQA Guidelines Section 15126.6 requires a reasonable range of potentially fusible alternatives that would avoid or substantially lessen significant impacts of the project. The DEIR's proposed planned district alternative (Section 6.3),identified as 21 units in one place and 20 units in another,varies minimally from the proposed-project. A planned development that truly clusters the homes, with significantly greater buffers from the creeks and from adjacent neighbors, as well as greater tree retention, should be provided to meet this requirement. Such an alternative should employ smaller lots such as 10,000 sq. ft. developed with smaller homes, compatible with those that currently exist in the Finney Drive or Leland.Drive areas. There is neither necessity nor much value,relative to the intent of CEQA,in providing a planned district alternative that mirrors the R-20 zone. The EIR should discuss and evaluate this issue. 6. Tree Protection Impact 4.8-2 (page 4.8-19)identifies some 37 significant trees that would be impacted by project development. The recommended mitigation measures relating to protection measures (grading,etc.) would be suitable and are appropriate. however,the measures collectively do not create a financial incentive for tree retention. We would recommend the requirement of a bond from the developer for the 37 "significant"trees that may be impacted. The County has a practice of requiring a bond in the amount of the trees impacted plus an additional 20%. This band is required prior to grading and released only after the completion of the construction. The EIR should discuss and evaluate this issue. 7. Excessive Length of Cul-de-Sac It is our understanding that the City of Lafayette has adopted.the Contra Costa County Subdivision Ordinance by reference. Section 92-4.018 of that ordinance limits the length of a cul-de-sac to 700 feet, and also limits the number of lots that can be served to 16. It would appear that an exception,pursuant to Section 92-6.002 et. seq., would need to be granted since the length of the cul-de-sac system is more than 740 feet and more than 16 homes are proposed. It is assumed that the City of Lafayette's ordinance would require public notice of the exception; yet,the DEIR does not mention the needed exception. While notice may not be a CEQA issue, the EIR should address it. It also seems doubtful that the exception findings requiring that granting the exception is necessary and the existence of unusual conditions or circumstances, could be made when the City and applicant have the option of creating a second access, obviating the need for an exception. County staff believes the provision of two (or more) accesses is the environmentally preferred solution to the access question. That solution would equalize 5 _ _ _ City of Lafayette Planning Commission November 29, 2001 traffic impacts for existing residents on bath sides of the project and reduce vehicle miles traveled by shortening travel distances. The EIR should discuss and evaluate this issue. 8. Noise Reduction, Hours of Construction The DEIR,pages 4.5-11 8: 12, recognizes the adverse but temporary noise impacts of construction activity and proposes limits on the hours of construction. The Contra Costa County Community Development Department suggests tightening the hours that noise generating construction activity would be allowed from 8:00 a.m. to 7:00 p.m. on weekdays to 8:00 a.m. to 5:30 p.m., and to prohibit work on Saturday;as compared to the 9:00 a.m. to 5:00 p.m. Saturday hours proposed in the DEIR. It is also recommended'that property owners within 300 feet be given a minimum of three days notice before any major site grading occurs. The EIR should discuss and evaluate this issue. 9. Noise Reduction,Sound Walls The Finney Drive area generally would be impacted by an increase in traffic and traffic related noise. The DEIR (page 4.5-11)finds that the impact would be insignificant because it would raise the day-night average noise level less than 1 decibel.however, the two houses immediately to the north and south of the new entry road would be impacted to a much greater extent than others and from directions that have not previously produced significant traffic noise. The Contra Costa County Community Development Department recommends that a 6-foot masonry sound wall be required as a mitigation measure along the property line boundaries abutting the new entry road for Lot 224 of Sun'Valley Estates and Lot 18 of the Swanson Tract. The EIR should discuss and evaluate this issue. 10. Drainage Generally,the drainage and hydrology sections of the DEIR are adequate. We would like to emphasize, however,the need for Fish and Game approval of the outfall into the creek. That agency has shown increased concern with biotically sensitive treatment of outfalls and has not always accepted the traditional engineered outfall. The pond area that is proposed to be filled should also be subject to Fish and Game as well as U.S. Fish and Wildlife review and approval. Appropriate Best Management Practices should be required to address water runoff and water quality issues for bath construction and post- construction periods. The EIR should discuss and evaluate this issue. We hope these comments are beneficial to your review of the project and that the access issue will be resolved in a manner that will minimize impacts on residents of Kinney Drive and the unincorporated County area. Please keep in mind that Contra Costa County is a Responsible Agency under CEQA and as such has discretionary approval over aspects of the project. While there are many concerns raised in this comment letter, the failure to consider access alternatives and a failure to respond to impacts identified in the Notice of Preparation and the Initial Study are of greatest importance. PIease keep 6 the Contra Costa County Community Development Department and Contra Costa County Public Works Department informed as to the status of the project review. As you know, many of the citizens most concerned with this project are residents of the unincorporated area. Very truly yours, Catherine Kutsuris by "I Deputy Director, Community Development Department cc. .—Board of Supervisors ,-Saranap Homeowners Association ,Dennis Barry, Community Development Director ,Heather Ballenger,Public Works Department ,N ichael Henn, Planning Consultant ,,Linda Wilcox, County Counsel's Office 7