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HomeMy WebLinkAboutMINUTES - 06151993 - D.2 w TO: BOARD OF SUPERVISORS FROM: HARVEY E. BRAGDON DIRECTOR OF COMMUNITY DEVELOPMENT DATE: June 8, 1993 SUBJECT: Byron 78 General Plan Amendment SPECIFIC REQUEST(S) OR RECOMMENDATIONS) & BACKGROUND AND JUSTIFICATION RECOMMENDATIONS 1. Consider any relevant issues regarding the Byron 78 General Plan Amendment or items you wish the East County Regional Planning Commission to consider in review of 12968 RZ, #3031- 91 and M.S. 39-91. Specifically, refer the issue of child care, and the east-west trail access between Bixler Road and Discovery Bay to the Commission for consideration in their deliberations. 2 . 'Defer a decision on the Byron 78 General Plan Amendment until after the East County Regional Planning Commission makes a recommendation on the current planning applications. Schedule the General Plan for decision on the same day as these items are heard by the Board of Supervisors. FISCAL IMPACT Covered by developers fees. CONTINUED ON ATTACHMENT: YES SIGNATUR RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMEND ION O ARD COMMITTEE APPROVE OTHER SIGNATURE(S) : ACTION OF BOARD ON i APPROVED AS RECOMMENDED x_ OTHER X All persons desiring to speak were heard. The Board APPROVED the recommendations of the Community Development Director set forth above which included referring the issue of child care and the east-west trail access between Bixler Road and Discovery Bay to the East County Regional Planning Commission. VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A UNANIMOUS (ABSENT TRUE AND CORRECT COPY OF AN AYES: -r'✓, -Pr, NOES: ACTION TAKEN AND ENTERED ON THE ABSENT: ABSTAIN: MINUTES OF THE BOARD OF SUPERVISORS ON THE DATE SHOWN. Orig: Jim Cutler (646-2035) CC: Community Development Department ATTESTED CAO County Counsel PHIL BATCHELOR, CLERK OF Public Works THE BOARD OF SUPERVISORS AND COUNTY ADMINISTRATOR BY Q. lJ , DEPUTY aw 1/a:\bo\byion7 8 Byron 78 General Plan Amendment June 8, 1993 Page -2- BACKGROUND/REASONS FOR RECOMMENDATIONS On May 4, 1993, the Board held a public hearing on the Byron 78 General Plan Amendment, closed the public hearing, directed staff to provide more input on a few outstanding items, and decided to defer a decision on the General Plan Amendment until after the East County Regional Planning Commission has made a recommendation on #2968 RZ, #3031-91 and MS 39-91. The commission is scheduled to consider, . at continued public hearing, the rezoning application on July 12 , 1993 . Upon completion of Commission action on these items the General Plan could be scheduled for decision on the same date as these applications are to be heard by the Board of Supervisors. OUTSTANDING ISSUES • Child Care The issue of full compliance with the County's child care ordinance came up. The East County Regional Planning Commission should review the Conditions of Approval to insure that it makes specific provision for compliance with child care ordinance. The impact study should be completed prior to project approval. Mitigation of impacts should be done prior to filing of the final subdivision map. • Trail Access An east-west trail access to the Discovery Bay community was considered in the Conditions of Approval. The Commission should consider various alternative trail locations and has already expressed it's support of an internal trail connection to Discovery Bay. Given the wetland limitations on the use of the site, a generalized location may be all that can be resolved. presently. The final location needs to be worked out with the applicant and with State and Federal regulatory agencies. • Jobs - Housing Balance The primary goal of this plan amendment is to provide for - retail areas to serve the Discovery Bay Community. Discovery Bay was originally proposed as a vacation home project and inadequate retail locations were provided to serve future residents. This plan amendment project will assist in meeting those shopping needs while providing for additional jobs in the area. The types of jobs provided in commercial areas are generally low paying and might not be met by Discovery Bay residents. The Albers housing project would theoretically be of a price range where second family wage earners might work at this center. Given the commercial nature of this project, there is little additional that can be done to resolve the jobs/housing equation and no referral on this is recommended. • Roadway Connection From Discovery Bay to the West This issue has been raised about extending the road network to connect these projects to Discovery Bay. Unfortunately, the lotting pattern within Discovery Bay, west of Newport Drive to these developments, does not provide for a logical connection point. As described in our original staff report, Discovery Bay was planned as a self contained community and provisions for its expansion wasn't provided for. ew 7/a:\bo\byron78 Byron 78 General Plan Amendment June 8, 1993 Page -3- The Discovery Bay West proposal, still in embryonic form, calls for a road connection through their project to the extreme north end of Newport Drive. It is too far north to deal with the trip movements of concern to the Board. A logical point of connection might be to extend Marsh Creek Road easterly to Newport Drive. That idea was not considered as part of either the Albers or Byron 78 EIR's. Given CEQA limitations, the concept of an additional access to Discovery Bay from the west cannot be added into the project requirements. It would be possible to direct the County staff to add consideration of the Marsh Creek Road Extension into the EIR which will be done for the Discovery Bay West proposal. If the applicant chose to offer to reserve right-of-way along their northern property line as a safety valve, subject to adequate environmental review; the Commission could consider that concept. • Legal Issues At the public hearing Mr. Sanford Skaggs presented a letter which calls for the recirculation of the Byron 78 EIR (copy attached) . It should be noted that these points weren't raised at the time of certification on this EIR nor at the East County Regional Planning Commission meeting when they considered the General Plan Amendment. In response to that letter, the applicant's attorney, Morrison and Forrester, has provided the response included as attachment B to this report. They dispute the conclusion of "McCutchen", that recirculation of the Draft EIR is required. As you can see by the date of that letter this response was just provided to staff. Neither the County Counsel's Office or our Department have had time to review this new material, so that we could make an informed recommendation to you on this matter. Since the East County Regional Planning Commission was the hearing body on the adequacy of the EIR and has already recommended it's adequacy to the Board, staff feels that the Commission should proceed with it's scheduled July 12, 1993 , hearing and decision on this matter. Staff will be in a position to respond to this recirculation issue when the rezoning comes to public hearing before the Board of Supervisors. aw t/aAbo\byron78 IATTACHMENT "A" McCUTCHEN, DOYLE, BROWN & ENERSEN SAN FRANCISCO COUNSELORS AT LAW WASHINGTON,D.C. LOS ANGELES 1331 NORTH CALIFORNIA BOULEVARD TAIPEI SAN JOSE POST OFFICE BOX V WALNUT CREEK WALNUT CREEK, CALIFORNIA 94596 AFFILIATED OFFICE TELEPHONE (510).937-8000 BANGKOK FACSIMILE (510) 975-5390 May 4, 1993 DIRECT DIAL NUMBER (510) 975-5310 HAND DELIVERED Board of Supervisors Contra Costa County 651 Pine Street Martinez, CA 94554-0095 Byron 78 Project County File No. 5-90-EC Our File No. 14205-047 Ladies and Gentlemen: This is in reference to the General Plan Amendment for the Byron 78 project ( "Project") , listed as Item H. 6 in the Board' s May 4, 1993 agenda. We represent ' Centex which plans to develop a single-family residential subdivision across Highway 4 from the Project. The environmental impact report prepared for the Project is not adequate under CEQA and request that approval of the Project be postponed pending further environmental study. We have identified defects in the EIR in two general categories . The first category involves significant new impacts identified in the final EIR that were not addressed in the draft EIR. The presence of these impacts requires that the EIR be recirculated for public review and comment. The second category of defects relates to the final EIR' s failure to adequately respond to several of the significant environmental issues raised in the comments submitted on the draft EIR. This failure renders the final EIR legally inadequate. I. THE FINAL EIR'S INFORMATION REGARDING NEW SIGNIFICANT ENVIRONMENTAL IMPACTS MUST BE RECIRCULATED . An EIR must be recirculated whenever the final EIR contains important new information requiring major revisions to the Environmental Impact Report. Public Resources Code § 21092 . 1 . The courts have held that recirculation is Board of Supervisors May 4 , 1993 Page 2 necessary if the final EIR reveals new significant impacts that were not contained in the draft Environmental Impact Report. See Mira Monte Homeowners Association v. County of Ventura, 165 Cal . App. 3d 357, 364-365 (1985) . The final EIR for the Project identifies at least 13 new significant impacts that were not discussed in the draft EIR. 'These new impacts include the following: 1. Wetlands, Vegetation and Wildlife. The draft EIR was devoid of any analysis of the 'Project ' s potential impacts on biotic resources. In response to comments from the State Department of Fish and Game, the final EIR acknowledges eight r. ew significant impacts . These impacts include: ■ The loss of 31 .3 acres of jurisdictional wetlands, located throughout virtually the entire portion of the site planned for the shopping center and office buildings (except for the service station) and substantial portions of the areas planned for both light industrial and boat/RV storage. ■ Significant adverse impacts' on the following species : tiger salamander, up to three species of fairy shrimp, San Joaquin kit fox, burrowing owls, and Contra Costa goldfields . ■ Significant cumulative impacts on a variety of biotic resources, such as alkali sink scrub, and foraging habitat for the San Joaquin kit fox. The information in the final EIR regarding these impacts consumes 13 pages, which is longer than all but one of the substantive impact sections of the EIR. The public must be given the opportunity to review and comment on such a substantial addition of new information. Moreover, we note that the EIR' s information regarding the Project' s biological impacts remains incomplete. For example, the wetlands delineation included as Figure 19 of the final EIR is not detailed and fails to show the location of the wetlands relative to proposed Project improvements. Accordingly, this delineation is insufficient to evaluate the efficacy of any mitigation program that might be imposed. Further, the mitigation measures proposed for these impacts are completely inadequate, relying on an unspecified redesign of Board of Supervisors May 4, 1993 Page 3 the Project to avoid the wetlands and future studies to determine the location of the special status species . These deficiencies must be corrected in the recirculated EIR. 2. Water Quality Impacts from Urban Runoff. This impact was identified by the California Regional Water Quality Control Board. The final EIR does not dispute this impact will occur, but merely notes that these impacts will be regulated by the National Pt.11ution Discharge Elimination System (NPDES) . The mere existence of a statutory system for addressing an impact does not absolve the EIR from the need to address that impact in the draft . Accordingly, the recirculated EIR must analyze the Project ' s potential water quality impacts relating to runoff and analyze feasible mitigation measures. 3. Pesticide and Herbicide Impacts. At the request of the California Regional Water Quality Control .Board, the final EIR states that the Project could cause the release of pesticide and herbicide residues during removal of debris from Kellogg Creek, causing new significant adverse effects on downstream wildlife. Potentially affected species include the delta smelt, a species proposed for federal listing. This new impact, and the EIR' s recommended mitigation measure, must be addressed in the recirculated EIR. 4 . Corrosive Soils. In response to the Contra Costa Resource Conservation District,.• the final EIR acknowledges a potentially significant impact relating to the potential for on-site soils to corrode concrete and uncoated steel . This impact, and the EIR' s recommended mitigation measure, must be addressed in the recirculated EIR. We understand that the Project has been reduced in scope in order to reduce or avoid some of the impacts list above. However, this does not alter the fact that the final EIR contains significant new information that requires recirculation under Public Resources Code section 21092. 1 . If the new impacts are to be reduced or avoided by Project redesign, the recirculated EIR must contain sufficient information regarding both the impacts and the reconfiguration of the Project to enable the Board and the public to determine if the redesign is likely to be effective. That information is absent from both the draft and the final EIR. Board of Supervisors May 4, 1993 Page 4 II . THE FINAL EIR INADEQUATELY RESPONDS TO SIGNIFICANT ENVIRONMENTAL ISSUES RAISED IN COMMENTS ON THE DRAFT EIR The final EIR is required to contain the County' s responses to the significant environmental issues raised in comments submitted on the draft EIR during the review and comment period. There _gust be good faith reasoned analysis in response; conclusory statements unsupported by factual information will not suffice. CEQA Guidelines § 15088 . See also Sutter Sensible Planning, Inc . v. Board of Supervisors, 122 Cal . App. 3d 813, 819-820 (1981) . The Byron 78 final EIR fails to respond to the following issues raised during the comment process : 1. Basis of Analysis. The City .of Antioch criticized the draft EIR for basing its analysis on a projected 2,300 employees for the entire Project, because the requested General Plan Amendment would allow over 6, 000 employees. The final EIR' s response to this comment is inadequate. Although the P-1 zoning might, if granted, limit the potential number of employees to 2,300, the General Plan Amendment comes before the Board for approval on May 4 , 1993, unaccompanied by an subordinate regulations that would limit development of the Project site. Accordingly, the EIR must analyze the impacts that would result from the number of employees associated with the development permitted by- the Amendment . In the alternative, the Board should delay consideration of the Amendment until the P-1 Zoning request is before the Board. See draft EIR page 126, "Growth-Inducing Impacts . " Accordingly, some analysis of the Project ' s potential impact upon schools was required in response to Ms . Reinhart. The final EIR is deficient for failing to provide such analysis . 2. Analysis of Runoff Impacts. The California Regional Water Quality Board requested an analysis of the Project ' s urban runoff impacts. The final EIR acknowledges that there may be significant runoff impacts. However, instead of providing the requested analysis, the final EIR merely states that an NPDES permit will be required. This is not a good faith reasoned response supported by factual information. The EIR is required to provide the requested analysis. Board of Supervisors May 4 , 1993 Page 5 III . THE DRAFT EIR IS FATALLY DEFICIENT Recirculation of the EIR will enable the County to correct the legal deficiencies that plague the September 1991 draft EIR. These deficiencies include, without limitation, the failure to consider a reasonable range of alternatives to avoid Project impacts (including the new impacts identified in the final EIR) and the failure to adF-quately address cumulative impacts ( including cumulative im-)acts on vegetation, wildlife, schools and water quality. Please continue the pending Byron 78 General Plan Amendment, revise the EIR to addrjss these comments and recirculate it to comply with the law. . I will be available to answer any question the Board may have regarding the matters discussed in this letter. Very truly yours, Sanfor M. Skaggs 0526g cc : Alan Hyden Raymond G. Smerge' Ann R. Danforth JUN 09 '93 01:52PM MO FO WALNUT CREEK P.2ie ATTAC MENT B MORRISON &.FOERSTER SAN FRANCISCO ATTORNEYS AT LAW NEW YORK LOS ANGELES WASHINGTON,D.C- crACRAMENTD PLEASE RESPOND TU: DENVER ORANGE COUNTY P O.BOD(8130 LONDON PALO ALTO WALNUT CREEK,CA 94596-8130 BRUSSELS SEATTLE HONG KONG 101 YGNACIO VALLEY ROAD, SUITE 650 TOKYO WALNUT CREE y CA 94596-4095 TELEPHONE (510)299,3300 DIRECT DIAL NUMBER T'ELEFACSIMILE (510)946-9912 June 9, 1993 (510) 295-3310 victor J. Westman, Esq. county Counsel county of Contra costa 651 nine Street 9th Floor Martinet, CA 94553 Mr. James Cutler - Assistant Director of Comprehensive Planning County of Contra Costa 651 Pine street 9th Floor Martinez, CA 94553 Re: Byron 78 Project Dear Vic and Jim: Our client, Byron 78, has submitted to contra Costa County (the "County") applications for entitlements to develop office and commercial uses (the "Project") on a 78-acre site located in the Discovery Bay area of the County (the "Project Site") . Following extensive environmental review of the Project site, including preparation of two environmental impact reports, a multitude of biological and other studies over a period of six years, and a thorough public comment and hearing process, the Board of supervisors (the "Board") considered on May 4 , 1992 Byron 78's application for a general plan amendment (the "GPA") . At the May 4 hearing, attorneys for Centex raised the issue of recirculation of the second FEIR covering the Project Site. We are writing in response to that issue, and to urge the county to move forward in expeditiously certifying the Byron 78 EIR. JUN 09 '93 01:52PM NO FO WALNUT CREEK P.3i8 MORRISON&FOERSTER victor J. Westman, Esq. Mr. ,lames Cutler ,Tune 9, 1993 Page Two T. Background Byron 78 has submitted applications to the County for: (i) the GPA; (ii) a rezoning of the Project Site; (iii) preliminary and final development plans; and (iii) a vesting tentative parcel map to subdivide the Project Site into four legal parcels. In accordance with the requirements of CEQA, the County prepared a 'draft environmental impact report (the «DEIR'F) for the Project evaluating the potentially significant environmental impacts of the Project and recommending mitigation measures to reduce such impacts. The DEIR was circulated for public review and comment pursuant to the requirements of CEQA. The public .review period began in October 1, 1991 and (as is the County's frequent practice) was extended beyond the statutory period. for two weeks to November 29, 1991. During the public comment period, sixteen written comments on the DEIR were received by the County, including one comment from a private interest unaffiliated with Byron 78 , fourteen comments from public agencies and one comment from Byron 78. At the East county Regional Planning Commission (the ('Planning Commission") public hearing, two individuals and three commissioners addressed the DEIR. At no time during the CEQA public comment period, however, did Centex submit comments on this second. DEIR. To fully respond to the issues raised in the comment letters on the DEIR, Byron 78 conducted additional studies for the Project Site, including a jurisdictional wetlands delineation and studies for species of special concern. As a result of these studies, thorough and well- reasoned responses to the comments on the DEIR (the '#Responses to Comments") were drafted and, pursuant to the requirements of CEQA, incorporated into a final environmental impact report for the Project (the IfFEIR") , which was completed in September 1992 . These studies provided the County with an opportunity to consider additional mitigation measures, not set forth in the DBIR, to fully mitigate any potential impacts on jurisdictional wetlands and species of special concern. Byron 78 has indicated to the County its intention to incorporate these mitigation measures into the Project. These mitigation measures include elimination of the proposed light industrial uses on the Project site, and a reduction in the scale of the proposed shoppirig center. No new uses or expansions to the Project would occur, only reductions in JUN 09 '93 01:53PM MO FO WALNUT CREEK P.4/8 MORRISON&FOERSTER Victor J. Westman, Esq. Mr. James Cutler June 9, 1993 Page Three project scope which would result in fewer impacts on the environment. Moreover, a draft mitigation plan for wetlands and species of special concern has been developed and submitted to the Planning Commission and the Board for consideration in public hearings on the Project. On October 26, 1992, the Planning Commission conducted a hearing on the adequacy of the EIR, received oral testimony on the adequacy of the EIR and voted unanimously to recommend certification of that document. Again, no representative of Centex took the opportunity at that time to raise CEQA objections. The Planning Commission held a public hearing on the GPA on February 1, 1993. At that time, the Planning Commission recommended approval of the GPA, including the mitigation measures incorporated into the Project. Again, at no time did Centex raise any issue related to- the EIR, or suggest that recirculation should occur. In fact, Ms. Lucia Albers, the current owner of the Centex site, provided testimony directly in support of the Project. In addition, on May 3 , 1993 the Planning Commission held a public hearing on the rezoning, preliminary and final development plan, and the vesting tentative map applications. Centex again failed to raise any objection at the May 3 hearing. On May 4, 1993, the Board held a public hearing on the GPA And deferred consideration of the matter. During that hearing, for the first time in this lengthy CEQA process, the attorneys for Centex submitted a letter requesting recirculation. No recirculation request has been made by any of the federal or state agencies asserting jurisdiction over wetlands or biological issues. Moreover, to our knowledge, no other party has requested recirculation. 11. The Project Should Not Be Further Delayed Because Recirculation of the DEIR is Inappropriate CEQA requires that if, after public review and interagency consultation but prior to final certification, the lead agency adds "significant new informationH to an EIR, the lead agency must issue new notice and must recirculate the EIR for additional public and agency review. Cal. Pub. Res. Code 5 21092.1. Judicial decisions JUN 09 '93 0i:53PM MO FO WALNUT CREEK P.5i8 MORRISON&FOERSTER victor J. Westman, Esq. Mr. James Cutler June 9, 1993 Page Four interpreting the threshold for recirculation make clear that recirculation is required only where significant new information is added or other substantial changes are made to the EIR. See e.g. , Sutter Sensible Planning, Inc. v. Board of Supervisors, 122 Cal. App. 3d 813 , 822-23 (1981) ; Marin Municipal Water District 'v. KG Land California Corp. , 235 Cal. App. 3d 1652, 1667 (1991) . State and federal courts continuously have recognized that recirculation of draft EIRs, negative declarations and draft EIS' should be limited to avoid potentially endless cycles of environmental review that cause unwarranted delay. See e.g. , Long Beach Savings & Loan Assn v. International_Plaza Associates, 188 Cal.App. 3d 249, 263-64 (1987) ; State of California v. Block, 690 F.2d 753 , 771 (9th Cir. 1982) ; Marin Municipal Water District, 235 Cal. App. 3d 1652 (1991) . The principle applied by these courts is simple: "To allow the public review period to proceed ad nauseam would only serve to arm persons dead set against a project with a paralyzing weapon -- hired experts who can always discover' flaws. " Long Peach Savings & Loan, 188 Ca1.App.3d at 263. A low standard for recirculation would encourage an endless chess game of recirculation, new comment, and new circulation, potentially leading to infinite delay. Here, although some new information was added to the FEIR that was not contained in the VEIR, such information does not amount to "significant new informationF1 or to "substantial changes" in the EIR. As noted above, the Responses to Comments provided additional information gained through studies for wetlands and species of special concern. These studies, however, yielded no information indicating that any new unmitigable impact would result from the Project. in fact, as a result of these studies, mitigation measures have been incorporated into the Project that will mitigate all wetlands-related and biological impacts to a less--than-significant level. For example, whereas the DEIR analyzed buildout of urban uses for 1001 of the Project Site, mitigation incorporated into the Project, will now leave over half of the Project Site as agricultural land or mitigation land. with respect to species of special concern, all studies are complete, and those studies have not revealed the presence of any species of special concern on the Project Site, except for the Fairy Shrimp. Any Project impacts on Fairy Shrimp, however, will be mitigated to a less-than-significant level by the mitigation plan required by the FEIR. JUN 09 193 01:54PM NO FO WALNUT CREEK P.6/8 MORRISON&FOERSTER Victor J. Westman, Esq. Mr. James Cutler June 9, 1993 Page Five In a situation almost identical to the one at hand, the California Court of Appeal hold that further review was not required. In Sierra Club v. Gilroy City Council, 222 Cal. App. 3d 30 (1990) , a draft EIR prepared for a residential development project concluded that the project "would significantly reduce the present habitat value of the site," but failed to specifically identify the effects of the project on the California Tiger salamander (a species of special concern) . Id. at 45. A written comment on the draft EIR expressed concern about the impact of the project on various species, including the California Tiger Salamander. The California Department of Fish and Game also submitted comments, expressing concern over the loss of 454 acres of wildlife habitat. In response to these comments, the City commissioned a wildlife study of the project site to determine the impact of the project on California Tiger Salamander habitat. The study revealed that the project could have impacts on California Tiger Salamander habitat and recommended six mitigation measures to address those impacts. Upon review of the study, the California Department of Fish and Game recommended five mitigation measures in addition to those recommended by the study. Subsequently, the City Council certified the final .EIR and approved the project, adopting each of the mitigation measures that had been incorporated into the final EIR. The court rejected the Sierra Clubs claim that the identification of this new information required further review prior to certification of the final EIR. The court held that, because the impacts of the Project on wetlands and species of special concern were "thoroughly analyzed, acted upon, and incorporated into th'e final ETR," further review was not required. Id. at 45. Moreover, the court specifically commended the City for fimaking] pains to protect the potentially rare California Tiger Salamander by delaying certification of the EIR, by commissioning a study on it, and by adopting every mitigation measure that was . proposed to assure its continuing viability." Id. at 47-48. Thus, where the impacts were fully addressed inthefinal EIR, the City had acted properly in certifying the final EIR and approving the project in reliance on the final BIR. As was the case in Sierra Club, Byron 78 has acted properly in delaying the Project to conduct further studies in effort to identify methods to mitigate potential impacts of the Project on biological resources. Requiring recirculation of the DFIR under these circumstances would be inconsistent with CEQA's procedural scheme, which is JUN 09 '93 01:55P11 MO FO WALNUT CREEK P.7/8 MORRISON&FOERSTER Victor J. WeStMan, Esq. Mr. James Cutler June 9, 1993 Page six designed "to assist public agencies in systematically identifying both the significant effects of proposed projects and the feasible alternatives or feasible mitigation measures which will avoid or substantially lessen such significant effects.11 Cal. Pub. Res. Code 5 21002. To further this statutory purpose, the CEQA Guidelines contemplate that (i) comments on a draft VIR focus on environmental effects and "suggest additional apecific alternatives or mitigation measures that would provide better ways to avoid or mitigate the significant environmental effects"; (ii) responses to comments will include detailed and well-reasoned analysis; and (iii) that final EIRs ordinarily will not be recirculated for public review. See CEQA Guidelines 55 15088-89 (and Discussion following) , and 15204(a) . If recirculation were required for every addition of new information, project modification, or mitigation measures, lead agencies, fearing delays, would have little incentive to make or accept such changes. See Long Beach Savings & Loan Assn v. International Plaza Associates, 188 Cal. App. 3d 249, 263-264 (1987) (holding that "nothing in CEQA commands] respondents to circulate for public review additional mitigation measures made in response to comments [by project opponents]") ; State of California v. Block, 690 F.2d 752, 775 (9th Cir. 1982) (interpreting the NEPA recirculation standard upon which the CEQA standard is based) . Here, the express purpose of CEQA has been served through the lengthy and public environmental review process, which has included numerous additional studies at great expense to Byron 78. Instead of a rushed CEQA process where the public has been denied opportunity for adequate input and information, care has been taken throughout the Byron 78 CEQA process to ensure that the opportunities for additional study were maximized and that mitigation measures were incorporated into the Project where feasible. To penalize Byron 78 for this diligent approach is directly contrary to the policies of CEQA. See Lonq Beach savings and Loan, 188 Cal.App-3d at 263-64. YN-1-s-inequity ,is aggravated by the fact that Centex, which apparently is the only party calling for recirculation, chose to sit on its hands during the lengthy CEQA review process and failed to properly exhaust its administrative remedies. see Sea & sage Audubon Society, Inc. v. Planning CQmmi—spi—on, 34 Cal. 3d 412 (1983) . Throughout this process, potentially significant effects of the Project were identified and analyzed and the DEIR recommended mitigation measures to address such impacts. As contemplated by CEQA, the public comment and hearing process JUN 09 '93 01:55PM 110 FO WALNUT CREEK P.8/8 MORRISON&FOERSTER Victor J. Westman, Esq. Mr. James Cutler Jun6 9, 1993 Page Seven yielded helpful additional information which enabled the applicant to identify even more effective mitigation measures than those identified in the DBIR, and those measures have been incorporated into the Project. To the extent that additional impacts were identified subsequent to the close of the public comment period, such impacts are fully mitigated through measures either incorporated into the Project or imposed upon the Project as a condition of approval. We urge the County not to fall prey to Centext unfounded request. The policies of UQA and the interests of equity dictate that the Project, which calls for development of less than 33 acres within the County's urban limit line, not be subjected to further delays for the purpose of needlessly recirculating this second Byron 78 EIR. It would be singularly unfair to exacerbate the delays already experienced by the Project in this manner, particularly to satisfy a specious request from a party that chose not to participate in the CEQA process and failed to exhaust its remedies at earlier stages of the process. To require recirculation of the second EIR prepared for this Project Site on a small project of this nature is not legally defensible, and, in our view, would run counter to the issues addressed in the Board's recent CEQA workshop. Very truly yo David A. Gold DAG:abm cc: Anthony T. Ujdur R. Clark Morrison Karen Bowers 003202 [15363/11