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MINUTES - 07132004 - D.7
TO: BOARD OF SUPERVISORS Contra Costa FROM: DENNIS M. BARRY, AICP County COMMUNITY DEVELOPMENT DIRECTOR b47 DATE: July 13, 2004 SUBJECT: Hearing on Appeal Filed by the El Sobrante Valley Planning & Zoning Advisory Committee; and the Friends of Garrity Creek & Hilltop Neighborhood Association of a County Planning Commission Decision to Conditionally Approve a Vesting Tentative Map for a'Residential Subdivision (County File #SDO18533; Slavash Af'shar — Applicant & Owner) in the EI Sobrante area (Sup. Dist. 1). SPECIFIC REQUEST(S) OR RECOMMENDATION($)&BACKGROUND AND JUSTIFICATION RECOMMENDATIONS Adapt a motion to: A. ADOPT the Mitigated Negative Declaration determination proposed by staff and adopted by the County Planning Commission as adequate for purposes of compliance with the California Environmental Quality Act; B. FIND that the Mitigated Negative Declaration determination reflects the County's independent judgment and analysis; that on the basis of the whole record before it, the Board of Supervisors has determined that there is no substantial evidence that the project will have a significant effect on the environment; and that the material which constitutes the record of the proceedings may be found at the Contra Costa County Community Development Department, 551 Pine Street, Martinez, CA; CONTINUED ON ATTACHMENT: X YES SIGNATURE RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE APPROVE OTHER f SIGNATURE(S): see- d'doe a�,�. a- ACTION OF BOARD ON OTHER VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A TRUE AND CORRECT A UNANIMOUS (ABSENT,6Q,&f.) COPY OF AN ACTION TAKEN AND ENTERED ON THE AYES: NOES: MINUTES OF THE BOARD OF SUPERVISORS ON THE ABSENT: ABSTAIN: DATE SHOWN. Contact: Bob Drake(925)335-1214 ATTESTED A cc: Community Development Dept.(orifi.) JOHN SWE ,CL OF TH BOARD OF Siavash Afshar SUPERVI AND MUNTY ADMINISTRATOR El Sobrante Valley Planning&Zoning Advisory Committee Friends of Garrity Creek Hilltop Neighborhood Association Public Works Department County Counsel BYE ; ., "`,'. - ";flEPUTY C:W0WVAR NNkCCCty16C018533BnardAppeal.tene"wpd " ADDENDUM D,7 July 13, 2004 On this day,the Board of Supervisors considered an appeal from El Sobrante Valley planning&Zoning Advisory Committee, and.the Friends of Garrity Creek& Hilltop Neighborhood Association of a County Planning Commission decision to Conditionally Approve a Vesting Tentative Map for a Residential Subdivision in the El Sobrante area. Dennis Barry, Community Development Department Director, outlined for the Board the nature of the appeal and staff s recommendations on the matter. The Chair invited public comment. The following persons presented testimony: (see attached speaker list) The Chair closed the hearing and returned the matter to the Board for discussion. Supervisor Gioa clarified for the appellants that the Environmental Impact Report(EIR)process would not mean that no development would occur on the site and he stated that the issue before the Board was not a question of whether development should occur, but what would be the appropriate level of development and mitigations. Supervisor Gioia further stated his interest in proceeding in the most expeditious manner. He suggested the EIR should focus on issues involving drainage, biological and hydrological concerns in relation to the creek.,traffic circulation, and geology/soil issues, but he noted that the applicant may opt for a complete EIR.. Dennis Barry informed the Board that the most timely approach would be for the Board to retain jurisdiction on the subdivision and direct that this matter be returned to the Board when the EIR is complete. He further noted that the Zoning Commission would determine the appropriate scope of the EIR, and would make a recommendation as an advisory body as to its completeness and adequacy before returning it the Board. Supervisor Greenberg noted her desire for improved clarification in the environmental statements, and felt that the effects on traffic on Hilltop street and possible mitigations should be examined. In addition, the Supervisor felt the 26°r'1r slope issue needed to be addressed along with presenting a clear drainage plan detailing maintenance procedures. She encouraged the developer to consider a top-lot or pocket-park if there was a reduction in the recommended 35 dwelling units. Supervisor Gioia requested that any alternative proposal include complete information on the issue of (traffic)access to Marin Road. Dennis Barry confirmed, at Supervisor Uiema's request,that annexation of the development into a local Geologic Hazard Abatement District was a Condition of Approval for the project. Supervisor DeSaulnier indicated his support for Supervisor Gioia's recommendations, and commented on the difficulties in achieving balance betwien the desire to limit growth on the outer edge of the County and the need for housing. D.7 July 13,2004 Appeal SD 018533 1 Having discussed the matter,the Board took the following actions: I. GRANTED the appeal of the El Sobrante Valley Planning&Zoning Advisory Committee, and the Friends of Garrity Creek&Hilltop Neighborhood Association of a County Planning Commission decision to ^conditionally approve a Vesting Tentative map for a residential subdivision. (#SDO16J33); 2. OVERTURNED the decision of the County Planning Commission; 3. FOUND that the project would result in significant environmental impact that is not proposed to be mitigated to a less than significant impact; 4. DETERMINED the Board would:retain jurisdiction of the subdivision, S. DIRECTED an Environmental Impact Report(EIR)be prepared.,the matter to return to the Board for further consideration upon a determination by the Zoning Administrator that the EIR is complete. ft1- r; r` D.7 July 13,2004 Appeal SD 018533 2 D.7 July 13,2004 SPEAKERS Appeal of El Sobrante Malley Planning&Zoning AdvNory Committee,and the Friends of Garrity Creek&Hilltop Neighborhood Association of a County Planning Commission decision to Conditionally Approve a Vesting Tentative Map for a Residential Subdivision in the El Sobrante area Barbara A. Pendergrass, Friends of Garrity Creek, Hilltop Neighborhood Associates, 745 Renfrew Rd,El Sobrante; , Keith G. Wagner, Attorney, Law Office of J. 'William 'Yeates, Friends of Garrity Creek, 8002 California Avenue, Fair Oaks; Bernard Willis, 816 Marin Road, El Sobrante, Marilynne L. Mellander, 7010 Monte Verde Read, El Sobrante; Errol Kuhn, 817 Marin Road, El Sobrante; Steve Everett, 15 Aspen Court, El Sobrante; Shirley Perry, Hilltop Green Homeowners Association, 1206 Parkway Drive, Richmond; Kent Brandenburg, Bethel Baptist Church, 4905 Appian Way, El Sobrante; David Sutton, Bethel Christian Academy, 148 Glenwood, Hercules; Van Brant, 247 Iris Road, Hercules; Geraldine Singleton, 3769 Stoney Lane, Richmond; Darlene Smith, 4861 Appian Way, El Sobrante; Gwynn O'Neill, Friends of Garrity Creek,210 Tunnel Avenue#3, Richmond; Jean Steward, 727 Bayview Court, Friends of Garrity Creek, El Sobrante; Bob Joyce, Friends of Garrity Creek, 921 Lorna Linda Avenue, El Sobrante Paul R.Nichols, 19 Crystal Circle, Hercules; Jesse Golden, 613 Pebble Drive, El Sobrante; Eleanor Loynd, Richmond Neighborhood Coordinating Council,PO Box 21551, El Sobrante; John Conry, Garrity Creek, 907 Juanita Drive, El Sobrante; Ken Petersen, Friends of Garrity Creek, 828 Marin,El Sobrante; Janet Laughlin, Friends of Garrity Creek, homeowners adjacent, 836 Marin Road, El Sobrante; Steven D. Branson, 6050 Oak Knoll Road, El Sobrante; Elizabeth O'Shea, 4050 Wesley Way,El Sobrante; Mary N. Willis, 816 Marin Road,El Sobrante; John Patrick, 5870 Hunters Lane,El Sobrante; Jamie McGrath, 836 Marin Road, El Sobrante; Miguel Hernandez, 894 Marin Road, El Sobrante; Virginia Haadley, The Fund for Animals, 857 N Rancho Road,El Sobrante; Joan C. Barker, 185 Manor Road, El Sobrante; Crystal Breidigan, 5905 Trigger Lane, El Sobrante; Irene Thompson, 80 Bonnie Drive, S°an Pablo; Rich Kral, 5128 Hilltop Drive, El Sobrante; Kars Saaron, 775 Kelvin Road, El Sobrante. The following person did not wish to speak, but left written comments for the Board: Marguerite Kauble, 725 Kendall Avenue, Crockett. U.7 July 13,2004 Appeal SD 018533 3 July 13, 2004 Board of Supervisors Hearing on Appeal of Request for 40-Lot Subdivision,File SD018533 Page 2 C. ADOPT the Mitigation Monitoring Program; D. DENY the collective appeal of the El Sobrante Valley Planning and Zoning Advisory Committee, the Friends of Garrity Creek and the Hilltop Neighborhood Association; E. SUSTAIN the decision of the County Planning Commission that grants approval of a residential subdivision subject to conditions; F. ADOPT the findings of the County Planning Commission as the basis for the approval of the subdivision and associated variances; and G. DIRECT staff to file a Notice of Determination with the County Clerk. FISCAL IMPACT: None. The applicant is responsible for all staff time and material costs in the processing of this application and appeal. 1. BACKGROUND A. Summary of General Plan and Zoning Considerations General Plan, The 10.09 acres site is designated Single-Family Residential - High Density (SH). The SH designation allows 5.0 to 7.2 units/net acre. Assuming that net acreage is 75 percent of the gross acreage, the holding capacity of the 10.09-acre site is 38 to 54 dwelling units. The Land Use Element contains policies for the El Sobrante area (General Plan, pages 3-73 and 3-74). Briefly summarized, these policies encourage "infill development" and encourage aggregation of deep narrow lots to yield better designed projects (Policies 3-204 and 3-205). Because of the limitations of the existing road network, new development should be approved in the low-to mid-density range (Policy 3- 2033). In the case of a property designated SH, the low range is five dwelling units/net acre; the mid-range is 6.1 dwelling units/net acre. The policies for El Sobrante recognize that some channels and drainage facilities in El Sobrante are inadequate, and call for implementation of measures to avoid inundation, ponding and sheet overflow during storms (Policy 3-202); and retaining and reinforcing the semi-rural and suburban character of the community, with strong emphasis on single-family residences (Policy 3-198). Zoning: The property is zoned R-7 (single-family residential, minimum parcel size 7,000 square feet). The Zoning Ordinance provisions regulating this district are found in Chapter 84-6. The standards of the District include minimum lot width 70 feet; minimum lot depth 90 feet; 2-112 (or 35 feet) building height; minimum sideyard setback 5 feet (aggregate site yard 15 feet); front yard setback 20 feet (minimum); and rear yard setback at least 15 feet. B. Site and Proiect Description The applicant/owner requests vesting tentative map approval to divide 10.09 acres into 40 lots. Variances are requested for: (a) construction of retaining walls taller than three (3) July 13,2004 Board of Supervisors Hearing on Appeal of Request for 40-Lot Subdivision, File SDO18533 Page 3 feet in height (up to 10 feet in height proposed), (b) combined retaining wall/fence structures in excess of six (6) feet in height (up to 13-112 feet in combined height) within the required yards (structure setback areas); (c) for variances to the minimum average lot width standard for four of the lots (Lots 11-14) (proposed widths as small as 56 feet; minimum 70-foot widths required), and (d) approval to remove two protected trees (Lots 18 and 38). The property fronts for 100.17 feet on the northwest side of Hilltop Drive, approximately 100 feet southwest of the Renfrew Road/Hilltop Drive intersection, and it fronts on the western terminus of Marin Road. The property is addressed 4828 Hilltop Drive, in the El Sobrante Area (R-7) (ZA:H-6) (CT 3630.00) (Parcels 426-210-007; 426- 182-001 & -017; and 426-192-005 & -008). C. Overview of Planning Process The application was received on May 17, 2001. At that time the request was for approval of 44 lots. On May 17, 2001; the applicant was notified by the Community Development Department (CDD) that additional information was needed, and the required data was listed. A revised Vesting Tentative Map and related information was submitted. On August 21, 2001, CDD issued a second request for additional information indicated that the application remained incomplete, identifying the specific items needed to make the application complete. A revised plan was submitted, along with the other items requested by CDD. The application was deemed complete on November 1, 2002. The posting of the CEQA notice and completion of the Initial Study was delayed to allow the applicant to work with representatives El Sobrante Planning and Zoning Advisory Committee (EI Sobrante P&Z). Specifically, review of the project had resulted in submittal of all of the data required to satisfy provisions of the Subdivision Ordinance and all technical data needed to prepare the Initial Study. During the 18 months between the filing of the application with CDD and deeming the application complete, the plan was revised and the lot yield reduced from 44 to 41 units. However, the correspondence in the County file indicated considerable opposition to the project. In an effort to resolve these differences outside of a public hearing, staff recommended that the applicant go back to the El Sobrante P&Z, get a list of their issues/concerns/recommendations, and then strive to modify the project to incorporate those "concerns" into the proposed VTM. Based on staff's suggestion the applicant obtained a list of issues from the El Sobrante P&Z. That list, which is dated December 23, 2002, is presented in Appendix G, page C-11 and C-12; it lists 26 recommendations. The applicant made changes in the plan to address the issues identified by the El Sobrante P&Z. Those changes included increasing the road widths in the project, connecting the project roads to Marin Road, thereby avoiding the need for an emergency vehicle access (EVA), and assigning duties for maintenance of the creek channel and common improvements to a homeowner's association. Staff reviewed the revised plan and: a) suggested that the applicant seek an endorsement of the newly revised VTM from the El Sobrante P&Z; and b) staff made additional suggestions pertaining to the grading and retaining walls, along with requesting more details on the measures intended to keep post-project flows at the pre-development level. July 13,2004 Board of Supervisors Hearing on Appeal of Request for 40-Lot Subdivision, File S©O18533 Page 4 Staff also advised the applicant that while he may wish to include a tot-lot in the project (an issue of the El Sobrante P&Z), the Ordinance Code does not allow the cost of that land (or the improvements) to be deducted from the park dedication fees. The reviews by the El Sobrante P&Z resulted in an updated and expanded list of issues and concerns presented in a letter dated April 19, 2003 (see Appendix G, pages C-8 and C-9). This list contains 29 suggested conditions/changes. In response to the 29-point El Sobrante P&Z list, the applicant revised the plan for a fourth time and issued a 29-point response (see Appendix G, page C-6). In summary, the lot yield was reduced to 40. Grading was substantially reduced; padded lots nearly eliminated from the project and the proposed slope gradients flattened from 2.5;1 to approximately :1.' This has eliminated the retaining walls in the project, with the exception of walls needed for roads in three places within the project (i.e., to comply with the Public Works standards for road gradients). The applicant also modified the road design to eliminate an EVA-only connection to the north to Manor Road, and instead provided a connection with Marin Road. D. Environmental Review For purposes of compliance with the California Environmental Quality Act (CEQA), staff conducted an Initial Study on the project to determine whether the project would result in a significant environmental impact; and staff determined that the project might result in several significant impacts including impacts pertaining to biological, geologic, cultural and traffic. Staff also identified measures that would mitigate each of those impacts to a less- than-significant level, and the applicant agreed in writing to those measures. On October 22, 2003, County staff posted a Notice of Intent to adopt a Mitigated Negative Declaration of Environmental Significance, and otherwise provided for notice of the proposed determination as required by law. On February 9, 2004, the public comment period on the proposed CEQA determination was extended to March 11, 2004. It should be recognized that the applicant has submitted correspondence from jurisdictional agencies (California Dept. of Fish & Game, Regional Water Quality Control Board, U.S. Army Corps of Engineers) indicating that those jurisdictional agencies have reviewed plans for development of the site and are prepared to issue permits subject to permit conditions. The Initial Study and Mitigated Negative Declaration (MND) was referred to the State Clearinghouse and to the jurisdictional agencies. There is no evidence in the record that any federal, State or regional agencies opposed the MND. However, community groups (i.e., the appellants) have consistently expressed the opinion that an Environmental Impact Report (EIR) is required, and they have submitted a petition signed by more than 200 persons expressing opposition to the project and requesting an EIR. Additionally, the City of Richmond reports drainage and slope stability problems in a 500-lot residential subdivision immediately west of the site that is within the City (Hilltop Green). For that reason the City of Richmond has requested preparation of an EIR. ' The Grading ordinance allows use of 2:1 (horizontal to vertical gradients)so the design that is currently proposed can be considered sensitive to geologic constraints. July 13,2004 Board of Supervisors Hearing can Appeal of Request for 40-Lot Subdivision,File SD018533 Page 5 Before deeming the application complete and commencing with preparation of the CEQA Initial Study, the Community Development Department required the applicant to submit various technical studies, including biologic resource, geotechnical, water pollution control, archaeologic, traffic and hydrologic reports. E. Planning Issues The application is a request to allow infill development of a site that has been designated for residential development. The site is surrounded by residential development. It is designated SH (single-family residential — high density) by the Land Use Element. Due to constraints, including slope, creek corridors and shape, the proposed project is at the low end of the allowable density. The appellants have expressed concern about the potential for various environmental impacts (i.e., traffic, hydrology/water quality, biological resources, and land use/density). Therefore, the issues to be resolved include the following: Consistency of the project with the County General Plan; • Adequacy of the CEQA Initial Study, Mitigated Negative Declaration and Mitigation Monitoring Program for the project; • Design-issues, including connection to the Marin Road, width of Royal Oaks Drive, justification for the proposed variances, and adequacy of proposed measures for protection of natural resources; and • Provision for park (or public trail) on the site/in the El Sobrante area. 11. COUNTY PLANNING COMMISSION HEARING AND DECISION On May 25, 2004, after notice was issued as required by law, the County Planning Commission held a public hearing on the application. At the Planning Commission hearing, staff presented the staff recommendation on the application, and the Planning Commission accepted testimony from the applicant and other members of the public. A. Staff Recommendation to the County Planning Commission to Reduce Number of Proposed Lots In reviewing the project, the staff analysis focused on: The need for access connections with adjoining parcels; The limitations on usable yard areas involving the proposed parcels with sloping building sites; The need for traffic-calming measures; and Concerns associated with determining consistency with various slope protection policies. July 13,2004 Board of Supervisors Hearing on Appeal of Request for 40-Lot Subdivision, File SD018533 Page 6 After considering these factors, staff determined that in order to make the required finding of consistency with the General Plan, it would be appropriate to recommend that the Planning Commission condition the project to: • Provide access connections with adjoining properties, and speed bumps along the main access into the project; and • Reduce the number of lots from 40 lots to 35 lots. These changes were portrayed in a Staff Study exhibit that was attached to the May 25th Staff Report. B. State Law Restrictions Limiting County's Ability to Reduce Number of Lots In recommending a reduction in the number of lots, the staff analysis acknowledged that the reduction would reduce the number of lots below the number (44 moderate income units) that had been targeted for this site in the General Plan Housing Element, and the need to adopt findings to show that this action would not interfere with the County's ability to meet its obligation for satisfying the regional housing need. Staff indicated that staff felt it would be possible to make the statutory findings needed before this reduction could be permitted. At the Planning Commission hearing, the applicant indicated that,he accepted all of the staff recommended changes, but objected to the recommended reduction in the number of units. After receiving testimony, the Planning Commission voted to continue the public hearing to its June 8, 2004 meeting because not all individuals desiring to speak had an opportunity to speak at the hearing. On June 8, 2004, the County Planning Commission continued to accept testimony from all persons who wished to speak on the application, including a rebuttal from the representatives of the applicant. Following the rebuttal from the applicant, the Planning Commission closed the public hearing. By a 4 to 2 vote the County Planning Commission granted approval to the subdivision application for 40 lots proposed by the applicant, with modification to Conditions of Approval #1 and #19. The two Planning Commission members that opposed approval expressed the opinion that an EIR should be required for this project. III. ERRATA (Correction to State Law Citation that Restricts the County's discretion in Reducing the Number of Residential Lots for a Proposed Subdivision) In reviewing the site plan, the staff report to the County Planning Commission had determined that the project could be improved by certain alterations to the project including a reduction in the number of lots (40 proposed; 35 recommended). However, in doing so, the staff report acknowledged that this site has been targeted for 44 moderate income dwelling units in the general plan. July 13,2004 Board of Supervisors Hearing on Appeal of Request for 40-Lot Subdivision,Pile SDO18533 Page 7 The staff report also acknowledged a provision of State law that limits the County's ability to make certain findings, and recommended that those findings be made (pg. 5-24, and pg. 3 of the recommended project findings. Ultimately, the Planning Commission elected not to follow the staff recommendation to reduce the number of units including the findings that would allow a reduction in the number of lots but rather to approve the project for the number of lots proposed by staff. Subsequently, staff determined that an error in the legal citation of the State law. The provisions of the State law were correctly described in the staff report. However, the statutory citation for this law is Government Code §85883 (b) rather than the citation identified in the Planning Commission staff report. IV. LETTER OF APPEAL On June 17, 2004 the Community Development Department received an appeal from the El Sobrante Valley Planning and Zoning Advisory Committee, Friends of Garrity Creek and Hilltop Neighborhood Association. A copy of the appeal, along with attachments, is presented in Appendix A. The appellant's letter identifies 15 appeal points. The appeal points and staff's analysis are as follows. V. REVIEW OF APPEAL POINTS The letter of appeal contains numbered appeal points. However, there were some general comments that preceded the numbered appeal points, and some appeal points were compound. The following presents the entire appeal letter verbatim but the numbering of appeal points has been modified (expanded). Appeal Point#1:_ General. On June 8, the Planning Commissioners approved a Mitigated Negative Declaration for this project (SD01-8588) and set a limit of 40 Domes for the site. We feel that these decisions were based on flawed, incomplete, and overlooked information. Staff Analysis: The appeal asserts that the decision is based on flawed, incomplete or overlooked material. However, no specifics are provided, except to refer to the attachments to the letter of appeal. Those attachments are a part of the record upon which the County Planning Commission decision was based. No correspondence or testimony is disregarded, but commissioners give weight to each piece of information that they believe is appropriate. July 13,2004 Board of Supervisors Hearing on Appeal of Request for 40-Lot Subdivision,Pile SDO18533 Page 8 Appeal Point # : General. The Initial Study fails to acknowledge several significant impacts. We incorporate, by reference, all written comments from Attorney Keith Wagner, Barbara Pendergrass for Friends of Garrity Greek& Hilltop Neighborhood Association and Eleanor Loynd for the El Sobrante Valley Planning & Zoning Advisory Committee. We are very concerned because the analysis of the adverse environmental effects and the development of mitigation measures were deferred until later and the burden of providing information on these significant adverse environmental effects was shifted to the public, the applicant, and other agencies. That is unacceptable. Staff Analysis. The March 25t", 20014 staff report responds to the CEGA comments of the El Sobrante Planning & Zoning Advisory Committee, Friends of Garrity Creek and Hilltop Neighborhood Association (see Appendix C, commencing on page S- 16). The letter from the law offices of J. William Yeates was submitted after publication of the staff report. However, that letter was presented to the County Planning Commission at the May 2e, 2004 hearing, and a representative of the firm of J. William Yeates offered testimony to the County Planning Commission. The staff analysis of the appeal points presented herein includes a section that addresses the legal issues raised by the Yeates letter(see Section VI of this report). It should be recognized that the evaluation of the Initial Study gave consideration chiefly to technical studies submitted by the applicant that were peer reviewed; and in the case of biologic resources and water quality issues, information was obtained from jurisdictional agencies (California Department of Fish & Game, Regional Water Quality Control Board). The criteria used by the County to evaluate impacts are not those used by the community groups or the general public. For example, the testimony of the appellants focused on problems associated with school traffic; problems backing out of driveways onto Hilltop Drive, and problems turning (on and off) of Hilltop Drive from minor streets in the neighborhood. The County utilizes the effect of the project on peak hour traffic at intersections to gauge traffic impacts. This is done by calculating the effect of the project on the level of service (LOS). The technical data in the traffic report submitted by the applicant was reviewed by the engineering staff of the Public Works Department. It was the review that served as the basis for evaluation of the traffic, circulation and parking impacts of the project. Similarly, biologic, geologic, hydrologic and other evaluations were made using technical data. To the degree that the comments of the community provided possible scientific and engineering data, that information was researched. For example, some possible artifacts were reported from the site and immediate area through written comments on the Initial Study by members of the public. These artifacts were examined by the professional archaeologists (Pacific Legacy), who also returned to the site to do a series of"shovel probes"to examine the soils in the area where the finds were reported by the public. In this case the professional archaeologist reported that materials collected by the public were not culturally- modified artifacts. Appeal Point#3: General. In addition, we feel that the decision is not in compliance with the standards in the General Plan. The staff report states that the County slope protection policies can only be met with a reduction in the number of proposed units to 35. The July 13,2004 Board of Supervisors Hearing on Appeal of Request for 40-Lot Subdivision,File 501018533 Page 9 Planning Commission ignored and/or overlooked this recommendation and approved 40 units for the site. Staff Analysis: Unlike an Ordinance Code, General Plan policies provide general direction but not specific standards. Additionally, policies may conflict with one another (e.g., the Housing Element contains policies aimed at meeting housing needs; the Conservation Element has policies aimed at protection of natural resources, and the Traffic and Circulation Element requires an efficient road network.) Based on consideration of these complex issues, the County Planning Commission determined that the project was consistent with the General Plan. Appeal Point #4: Traffic. The California courts have held that public testimony about noise or traffic impacts or topics that you may be personally familiar with (i.e., significant view along scenic highway) are substantial evidence of a project's significant impact.' Staff Analysis. The County had adopted thresholds of significance for such environmental effects as noise, traffic and visual quality. CEQA recognizes the validity of such locally adopted thresholds. The Noise Element contains: a) noise contour maps; b) noise policies, and c) a table showing land use compatibility for community noise environments. The site is not identified as an area impacted by noise. The project can be expected to generate long-term noise that is characteristic of a residential project. It is therefore not expected to create a significant impact. The project will add to cumulative noise levels along roads serving the project, but based on the relatively small number of residential units, those effects are less-than-significant. Construction-related noise is short-term and the noise source is not stationary. For these reasons, construction noise associated with a small land development project is considered less than significant. Moreover, the Conditions of Approval routinely restrict hours to minimize these effects (see COA #20.A, 20.B, 20.0 and 20.E, which are presented in Table 1). The County has adopted a threshold of 100 peak hour trips to trigger traffic studies that involve sophisticated modeling. In determining if a project generates 100 peak hour trips, the county uses I.TE generation rates. In this case the project generates less than half the number of trips to require a comprehensive traffic congestion management study. Nevertheless, the applicant was required to provide a traffic study to examine the effect of the project on local traffic within the site vicinity,3 and that study was referred to the Public Works Department for peer review. That analysis confirmed no significant impacts. The Initial Study did identify a traffic impact associated with the grading balance; and the applicant proposes frontage improvements on Hilltop Drive and on the segment of existing Marin Road 2 Yeates,William,2002, Community Guide to the California Environmental Quality Act, Planning and Conservation league Foundation. 3 Klemetson Engineering,2002. Traffic impact Analysis for Subdivision 8533. KE Job#K062(report dated December 15,2001; revised June 30,2002;addendum August 23,2002). July 13,2004 Board of Supervisors Hearing on Appeal of Request for 40-Lot Subdivision,Pile SD018533 Page 10 immediately adjacent to the site to provide a smooth transition of road grades at/near the property line. Table 'I NOISE-RELATED CONDITIONS ADOPTED BY THE COUNTY PLANNING COMMISSION COA#20.Contractor and/or developer shall comply with the following construction,noise,fitter,and traffic control requirements. These requirements shall be printed in the General Notes portion of the grading and subdivision improvement plans: A, All construction activities shall be limited to the hours of 7:30 a.m.B 5:00 p.m.,Monday through Friday,and shall be prohibited on state and federal holidays. B. The project sponsor shall require their contractors and subcontractors to fit all internal combustion engines with mufflers which , !4 are in good condition and shall locate stationary noise-generating equipment such as air compressors and concrete pumpers as far away from existing residences as possible. C. At least one week prior to commencement of grading,the applicant shall post the site and mail to the owners of property within ' 300 feet of the exterior boundary of the project site notice that construction work will commence. The notice shall include a list of contact persons with name,title,phone number and area of responsibility. The person responsible for maintaining the list shall be included. The list shall be kept current at all times and shall consist of persons with authority to indicate and implement cor- rective action in their area of responsibility. The names of individuals responsible for noise and litter control,tree protection, construction traffic and vehicles,erosion control,and the 24-hour emergency number,shall be expressly identified in the notice. The notice shall be re-issued with each phase of major grading and construction activity. A copy of the notice shall be concurrently transmitted to the Community Development Department. The notice shall be accompanied by a list of the names and addresses of the property owners noticed,and a map identifying the area noticed. B. Transporting of heavy equipment and trucks shall be limited to week days between the hours of 9:00 AM and 4:00 PM. and prohibited on Federal and State holidays. The Transportation and Circulation Element identifies scenic routes, and Scenic Routes Policies are identified as Policies 5-34 through 5-43. These policies are aimed at protection of views from scenic routes. The Open Space Element identifies scenic ridges and waterways, and implementing Scenic Resource Policies are identified as Policies 9-10 through 9-27. These policies are aimed at protection of major scenic ridges and scenic qualities of the San Francisco BaylDelta Estuary system. in this case, the site is not visible from a designated scenic route, and it is not on the flank of a designated scenic ridge. The project will be visible from the residential neighborhood surrounding the site, but there will be no long range views of the site because of its topographic setting. The project involves relatively minor grading and the biologic resource mitigation measures assure protection and enhancement of the biologically-sensitive portions of the project. The May 25r" staff report presents elevations of the proposed residences (see Appendix C, Figures 94 through 16). The dwellings shown in those figures indicate executive style homes that are at a substantially lower elevation than the surrounding homes, so they should not obstruct long-range views of the neighbors. Based on consideration of these factors, the visual impact of the project is less-than-significant. Appeal Poiret#5: Traffic. The testimony of numerous residents as to the heavy traffic on Hilltop Drive, especially during the commute time and the starting/ending of school as well as problems that people have backing out of their driveways should be considered as substantial evidence of this project's impacts. In addition, the County should have taken into account the current applications and homes under construction in the Appian July 13,2004 Board of supervisors Hearing on Appeal of Request for 40-Lot Subdivision, File SD018533 Page 11 Way/Hilltop area. The ten homes being built off Renfrew Court and the five homes under review will add even more traffic to Hilltop Drive. An environmental impact report would address the cumulative effect. Staff Analvsis: The testimony of residents have pointed out that traffic is heavy on Hilltop Drive, but these comments are not evidence of a significant impact. The proposed density of the project is at the low end of the allowable density, which can be interpreted, at least in part, as the applicant's response to this issue. The appellants have commented that nowhere in the Initial Study is formal recognition of cumulative traffic impacts, pointing out there are other projects in the immediately vicinity of the site. In response, the projects sited are a 10-lot major subdivision which is approved (but not yet built) and a five-lot subdivision (application submitted during June, 2004). Both of these projects are in the immediate vicinity of the SD018533 site and will generate traffic on the segment of Hilltop between the site and 1-80, along with traffic on neighborhood streets to destinations such as El Sobrante Elementary School . These project sites are shown in Figure 1. The traffic generated by cumulative projects was considered by Public Works staff. The projects shown in Figure 1 will generate less traffic than the adopted threshold for triggering a broad-scope traffic study (i.e., less than 900 peak hour trips using ITE projection rates). Considering the traffic study submitted for SDO18533 and the relatively small size of cumulative projects, it was determined that the cumulative traffic impacts are less than significant. Appeal Point #6: Marin Road. The second access road to this property, Marin Road, is currently a substandard County road with no sidewalks or curbs, large pot holes, and is very narrow with no delineated sides. The road is currently a dead end, so steep that you cannot see the bottom pert of the slope. It is like looking over the Grand Canyon. The developer does not intend to make any improvements to this road nor has the County required him to do so even though he was required to improve the access road to one of his other projects with a similar, narrow entrance road. The lack of improvements to Marin Road poses a threat to all existing residents and to the new residents as well. July 13,2004 Board of Supervisors Hearing on Appeal of Request for 40-Lot Subdivision, File SU018533 Page 12 » 1 1111 . 018533 , Prosect Site- fill t w 1111 ag � r 11! GRfEN j•\'`t\\\41 t`S�'ti\�Sti 4 \` M1 i 1,y� r rorty v PflfiC r'V AA�`�+.AA SAS\'W,S. S\ A i 17j till w �i t t \\ e ao- Lots Proposed I + 1+ } + _ r 10 Tests ApproN ed` a PARK Figure l Cumulative Projects on the Graphic Scale: 700 f, Hilltop Drive Corridor �..■..�,,, 0 July 13, 2004 Board of Supervisors Nearing on Appeal of Request for 40-Lot Subdivision,File SDO18533 Page 13 Staff AnalLsis: The site of the residential subdivision (SD018533) consists of five existing parcels. Two of those parcels are located at the west terminus of Marin Road (APN 426-192-005 & -008). Marin Road is a public road which stubs out at the site. Marin Road was intended to provide access to these parcels, which correspond to the area of proposed Lots 24 through 34 (11 lots). Due to the steepness of the terrain, at the west terminus of Marin Road, the initial plans for subdivision of the property did not propose a Marin Road connection. However, due to the length of the subdivision streets, a second access was needed for the project. The plans submitted with the application in 2001 called for crossing the tributary of Garrity Creek and extending an EVA to Manor Road. This alignment and width was acceptable to the Contra Costa County Fire Protection District and was acceptable to the California Department of Fish & Game with mitigation of riparian impacts. However, the EI Sobrante Valley Planning and,Zoning Advisory Committee, along with the Friends of Garrity Creek and Hilltop Neighborhood Association questioned the suitability of the EVA. To accommodate those concerns and keep biologic resource impacts to an absolute minimum, the Vesting Tentative map was modified to provide two access points. In effect, the VTM revision responded to the issues raised by the community groups that are now appellants. Appeal point#6 asserts that Marin Road is substandard, lacking curbs, sidewalks and with potholes. it goes on to assert that the current improvement standard to Marin Road poses a threat to all existing residents, as well as residents of SD018533. The public testimony before the County Planning Commission indicated that emergency access to existing homes at the west terminus of Malin Road was a problem for the Contra Costa County Fire Protection District. Providing a connection to proposed Garrity Creek Drive will improve circulation options for the existing residents of Marin Road and for emergency vehicles. The Public Works Department review indicates the bulk of project-related traffic will utilize the internal road system to access Hilltop Drive at the proposed Royal Oaks Drive intersection, and that project generation traffic will be chiefly oriented to the segment of Hilltop Drive between 1-80 and the proposed Royal Oaks Drive. To the degree that the existing Marin Road has deficiencies, traffic on Marin Road (especially homes near the west terminus of the road) may elect to use streets in the proposed subdivision to access Hilltop Drive, especially for trips oriented to 1-80. Appeal Point #7: Parks. There are no county parks in the El Sobrante area. The local planning advisory group has made it clear to Mr. Afshar since the first meeting that we want a tot lot or play area on site. If a park is not required, we ask that the County require the developer to pay $50,000 to $70,000 to the County Service Area R-9 Committee so they can partner with the school district, the EBRPD, or another entity to provide play structures. For your information, the developer of the County project, Appian Village, was required to pay $70,000 to CSA R-9 in lieu of a tot lot on that site. The developer of the Richmond 40-home project on Valley View at May Road will provide $50,000 to upgrade a neighborhood park rather than put a small park on that site. If no park is built on this site, Mr. Afshar should be required to pay money to offset the loss of the on-site park. July 13,2004 Burd of Supervisors Hearing on Appeal of Request for 40-Lot Subdivision,File Sd018533 Page 14 Staff Analysis: Park dedication fees are set at $2,000 per unit, so a 40-unit residential subdivision will generate $80,000 in park dedication fees. Fees collected in the El Sobrante area are spent in the El Sobrante area. Historically the County has partnered with the School District to improve/expand recreation facilities at schools. The project is fewer than 5O lots and thus the County is barred from requiring the developer to dedicate land for a park within the project by provision in State law. The 07pen Space Element of the General Plan encourages private developments to provide on-site recreational facilities to serve project residents, but does not mandate such facilities. The applicant has elected not to include one in this proposal. Were such a facility to be included in the project, the following matters should be considered. The subdivision ordinance (Ordinance Code § 920-8.004, et seq.) allows partial credit(up to 50 percent against the requirement of payment of in-lieu fees) if the County finds it in the public interest to do so and where the facilities meet certain standards. However, the General Plan provides that credit from the park dedication ordinance requirements should only be given where it is clear that private development provides facilities that are open to and serve the public. Appian Village. The County previously approved the 22-unit Appian pillage townhouse project off of Appian Way at Appian pillage Court. Perhaps in part because of the small private yard areas associated with that development, that project originally proposed a tot lot within the site. However, prior to construction, the applicant proposed, and the County approved a revised site plan that eliminated that tot lot. But in allowing the elimination of that tot lot, the County conditioned the project to contribute $75,000 of supplemental park fees, beyond the in-lieu ($2,OOO1unit) fee that applies to the project. The approval also provided that the supplemental fees be used for park purposes in the EI Sobrante area. During County Planning Commission hearings considerable testimony was received on the natural features along the tributary of Garrity Creek. The applicant does not own most of this channel which extends from the northwest corner of the site to the north (toward Manor Road). CCA #6 requires dedication of a floating trail easement along the segment of the creek that is on the SDO18833 site, should a publicly- maintained trail be established along this channel in the future. Appeal Point#8: Land Use. The property is zoned R-7 even though it is in conflict with statements in the General Plan, item 103-28. We respectfully call your attention to these county slope protection policies from the General Plan Safety Element: 103.28 "Generally, residential density shall decrease as slope increases, especially above a 15 percent slope„ and 103--29 "Significant hillsides with slopes over 26 percent or more shall be considered unsuitable for types of development which require extensive grading or other land disturbance." An EiR needs to be done to define which land is actually buildable. This July 13,2004 Board of Supervisors Hearing on Appeal of Request for 40-Lot subdivision,File SDO18533 Mage 15 development has slopes of 5 to 1 (20%), 4 to 1 (25%) and 3 to 1 (33 1l3%) as described in Mr. Afshaes own geological report. Staff Analysis: The comment points out that although the site is zoned R-7 (minimum standard parcel size 7,000 sq.ft.), it is a relatively steep property. The comment questions the application of Safety Element policies 10-28 and 90- 9 to the project and it goes on to suggest that an EIR is needed to define which land is buildable. In reply, the May 25 staff report provided the essential facts: • The Safety Element Policies are presented on page S-3. • A Slope Map of the property is presented in Figure 5. • A discussion of compliance with Policies 90-28 and 10-29 are presented on page S-9 and S-10. • The proposed density is atlnear the lower limit of the density range prescribed by the prevailing land use category (SH allows for 5.0 to 7.2 unitslnet acre; the proposed density is 5.26). The approach to compliance of Sa8533 with Policy10-28 is to keep the proposed density in the lower portion of the SH category (5.28 unitslnet acre) and the approach to compliance with Policy 90-29 is in hillside areas to avoid use of pads and instead tuck dwellings into hillside lots (thereby minimizing grading). From a geotechnical perspective, there are no areas of the site that are unsuitable for development. The question on General Plan compliance does not require further geotechnical or slope studies, and it does not require preparation of an Environ- mental Impact Report. It is a policy matter to be resolved by the Board of Supervisors. Appeal Point#9: Geology. The geological report does on to say "Areas of the site to be built on or paved should be stripped to remove any surface vegetation, organic top soils, and existing debris. Stripping depths should be determined in the field by the Soils Engineer at the time of stripping but for planning purposes an average depth of 3 inches may be assumed." Taking every bit of vegetation and top soil, as recommended in the Geological Report, will significantly change the visual nature of the land and provide a terrible dust problem for all residents. There is no provision in the plan to control the dust. This is in violation of CEQA law. Taking every bit of vegetation away will deprive the wildlife of their natural food supply. Staff Analysis: The comment quotes a provision of the geotechnical report and then goes on to draw conclusions that overstate its effects. The areas graded are to be stripped, but areas to be retained in open forms of land uses are not to be stripped (e.g., riparian area along creek channels, with exception of the creek crossing) and the "grassy swales". The project site is a bowl that is shelteredlpartially sheltered from winds by the surrounding terrain features. The visual appearance of the site will be changed July 13,2004 Board of Supervisors Hearing on Appeal of Request for 40-Lot Subdivision,File SC1018533 Page 16 during the earthwork, but projects of more than I acre require a SWPPP from the Regional Water Quality Control Board and approval of an Erosion Vontrol Plan. Moreover, the County Grading Ordinance requires control of dust during the grading period. Even with effective implementation of dust control Best Management Practices (BMP's), there will still be an increase in dust in the immediate project vicinity. Due to the relatively short duration of the construction period, these effects are considered to be less than significant. Finally, this comment suggests that development of the site will deprive wildlife of their natural food supply. In response, the agency with jurisdiction over biologic resources (California Department of Fish and Game) has made a site visit, provided recommendation to the applicant to minimize disturbance of sensitive lands and provided standards and criteria for mitigation of biologic resource impacts. Those recommendations and standards have been incorporated into the biologic resource mitigation measures, and those mitigation measures have been translated into Conditions of Approval 8 through 14. Appeal Point#10: Geolo . Mr. Afshar's Orion Court Project (Renfrew Court project) has been bare dirt for a year and a half and there is no indication that the Garrity Creek project will be any different. Again, the visual affect, the dust and loss of food for wildlife will have a substantial and destructive affect. Another reason for an EIR requirement. Staff Analysis: The comment suggests that an EIR should be required for SDO18533 because of reported problems on another project of the applicant. In response, there is no provision of CEQA to use past performance of an applicant as a criteria for triggering preparation of an Environmental Impact Report. Past experience might be a basis for imposing a rigorous compliance monitoring program. Appeal Point #11: Geology. Contra Costa County's General Plan, Section 8, Conservation Element 8-14, page 8-29 states that development on hillsides shall be limited to maintain valuable natural vegetation, especially forests and open space lands, and to control erosion. 8-15 Existing vegetation, both native and non-native, and wildlife habitat areas shall be retained in the major open space areas sufficient for the maintenance of a healthy balance of wildlife populations. 8-24 The County shall strive to identify and conserve remaining upland habitat areas which are adjacent to wetlands and critical to the surviving and nesting of wetland species. Staff Analysis: The record of biologic correspondence and studies for this project are listed in Table 2. The California Department of Fish and Game is the State agency with primary responsibility for protection of wildlife habitat and special status species. Can the project site the important habitat areas are the creek corridors, along with the wet meadow vegetation (on proposed Lot#29). Review of the project plans indicate that nearly all of the biologically-sensitive lands are to be preserved. July 13,2004 Board of Supervisors Hearing on Appeal of Request for 40-Lot Sub Table 2 Page 17 BIOLOGICAL RESOURCE----RELATED DOCUMENTS - California Department of Fish & Game, 2002. Agreement Regarding Proposed Streambed Alteration Notification(received by CDD on March 6,2002). The habitat areas that are - California Department of Fish&Game,March 11,2002.Proposed disturbed by implementation of Hilltop Road Area Project, County File #SDO18533, Revised the project are to be mitigated. Vesting Tentative Map of Subdivision 8533, Contra Costa County. Those mitigation measures I - LSA March El Sobrante.March 11,2002. Results of Fish and Game Site Visit,Hillview were based on criteria and Proje standards of the California ' - LSA, December 21,2001. Biological Resources of the Hiliview Project Site,El Sobrante, Contra Costa County, California. LSA Department of Fish and Job#AAD130, Game, and those mitigation - Monk& Associates, September 20, 2002. Hillview Subdivision measures have been (SD8533),El Sobrante,California. translated Into Conditions of - Wood, Michael K., July 1, 2002, Hillview Subdivision, Biologic Impacts and Mitigation Measures. Approval $ through 14. In - Wood,Michael K.,July 5,2002. Mitigation Monitoring Plan for the effect, a project that complies Proposed Hillview Residential Subdivision, El Sobrante., Contra with California Department of Costa county. Fish and Game permit require- - Wood,Michael K.,July 9,2002. Amendment to 1603 Notification ments can be Considered to of Streambed Alteration, Notification #2001-982, Hillview be In Compliance with General Residential Subdivision,El Sobrante.40Wood,Michael K.,July 9,2002. Preconstruc6on Notification for the Plan Policies 8-15 and 8-24. Placement of Fill in Waters of the U.S. Pursuant to Nationwide Permits 14 and 33 for the Proposed Hiliview Residential Appeal Point #12: Natural Spring. development,El Sobrante, Contra Costa County,California. Lot consists of natural spring and - Wood,Michael K.,July 8,2002. Application for Section 401 Water Quality Certification for the Proposed Hillview Residential riparian area. The current plan is to Development,El Sobrante,Contra Costa Coun ,California. build a home on the site and have the homeowner be responsible for the riparian area and spring. In addition, a sewer line is planned on the lot. One Commissioner pointed out in the Planning Hearings, that in order to protect this riparian area, you cannot have an individual homeowner responsible for the area. The lot should be owned and maintained by the Homeowner Association's by-laws. Staff Analvsis: The comment suggests that the wet meadow habitat be awned and maintained by a Homeowners Association, rather than being a deed-restricted portion of Lot#29. In response, there are examples of HOA's that did not fulfill their obligations because of financial factors. Another option that could be considered is a Geologic Hazard Abatement District. (The Conditions of approval adopted by the County Planning Commission included COA #18 which called for inclusion of 50018533 in a GHAD.) The CHAD could be assigned responsibility for maintenance of grassy swales and drainage structures in deed-restricted areas. The Plan of Control for the CHAD could also include maintenance of the fencing. Furthermore, COA #10 requires a biologic monitor to oversee all habitat and tree replacement in accordance with the provisions of the COA's and the Fish and Game permit for a period of five years. Appeal Point #13: Drainage Problems in Hilltop Green. There have been slides and flooding in the Hilltop Green area which is a 500 home subdivision located next to Afshar's project. Hilltop Green is below the Afshar project and all water will drain to that area. At this time the County has no information on the adequacy of the Hilltop Green Drainage system to contain the drainage from the Afshar project. County staff has required the July 13,2004 Board of Supervisors Hearing on Appeal of Request for 40-Lot Subdivision,File SD018533 Page 18 applicant to get that information and provide it to them at some future time, after the project approval. Staff Analvsis: Briefly summarized, the FEMA flood insurance rate maps indicate no flooding problems associated with the channel of Garrity Creek, the West County Wastewater District reported a flooding problem that has been corrected, and the County Flood Control District knows of no flooding problems between the site and 1-80. The City of richmond Public Works Department indicates there are drainage problemsldrainage complaints in the Hilltop Green development, but the City's records are incomplete and hence details of drainage improvements and hydrology calculations are not defined. The appeal letter presumes that the proposed project will adversely affect existing problems in Hilltop Green, but there is no technical data or engineering analysis to support his assumption. Furthermore, the applicant's project objectives, which are presented on page S-1 I of the May 25t' Staff report, include "to keep post-development runoff from the project site at the pre- development level for the design storm." Additionally, the applicant submitted a preliminary hydrology report which indicates that it may be feasible to keep post- development flows at the pre-development rate with grassy swales designed with this objective.4 Based on consideration of these factors, and with support of the engineers of the Public Works Department, it was determined that there was no evidence of a significant hydrologictdrainage impact. In summary, the project will be required to fully comply with all aspects of the drainage requirements of the County Subdivision Ordinance. This includes collecting all surface waters entering or originating on the subject property and conveying them in an adequate storm facility to its point of discharge into a natural watercourse. As an alternative, the Subdivision Ordinance allows the County, at its discretion, to require regulating the outflow from the project so as not to exceed the capacity of downstream facilities, and this is the applicant's stated intent. Strict adherence to these Code requirements can be expected to ensure that the project does not have an adverse effect on the reported downstream drainage inadequacies within the Hilltop Green project, interstate 80, or any other downstream drainage facilities. The Public Works Department, as part of the final design and plan review process, requires submittal of a detailed hydrology and hydraulic analysis of the downstream facilities to verify their adequacy prior to allowing to discharge to those existing drainage facilities. This may require off-site improvements to increase capacity should these facilities prove to be inadequate as defined by the Subdivision Ordinance. (Source: initial Study, pages 23-24.) Appeal Point #14: Garrity Creek Video. We urge the County Board of Supervisors to allow us to show you our video of Garrity Creek. Staff Analvsis: iVo response required. This is a request to present a CD that shows natural features on the site and the adjacent portion of the tributary channel to the 4 Klernetson Engineering,2002. Hydrologic Analysis for Subdivision 8533;4823 Hilltop Drive, El Sobrante Area, Contra Costa County. Report dated February 23, 2002. July 13,2004 Beard of supervisors Hearing on Appeal of Request for 40-Lot subdivision, File sD818533 Mage 19 north of the site. The features shown on the site are chiefly along creek channels, which are to be retained as deed-restricted private open space in the project. Appeal Point #15: Conclusion. We concur with the statement of our attorney Keith Wagner of the law office of J. William Yeates, that the Initial Study prepared for this project is legally inadequate. For these stated reasons, the EI Sobrante Valley Planning & Zoning Advisory Committee, the Friends of Garrity Creek, and the Hilltop Neighborhood Association appeal the Planning Commission decisions on SDOl-8533 to the Board of Supervisors. We feel that a full Environmental Impact Report should be required to provide complete and documented evidence of the impacts and mitigation measures needed to deal with environmental impacts, including the size of the project. Staff Analysis. The staff responses to the comment letter of J. William Yeates are presented below. VI. RESPONSE TO LETTER FROM THE LAW OFFICES OF J. WILLIAM YEATES Comment #1: Overview. This letter, on behalf of our client, Friends of Garrity Creek, provides comments on the Initial Study that the County has prepared for the above referenced project pursuant to the California Environmental Quality Act ("CEQA").5 These comments are submitted for your and the Planning Commission's consideration "prior to the close of the public hearing on the project before the issuance of the notice of determination."' These comments are in addition to, and do not in any way replace or supersede, any prior comments submitted by our client regarding the proposed project. The California Environmental Quality Act (CEQA) requires a lead agency to prepare an environmental impact report (EIR) whenever substantial evidence in the record supports a "fair argument" that a proposed project may have a significant adverse impact on the environment.7 "[Sjubstantial evidence includes fact, a reasonable assumption predicated upon fact, or expert opinion supported by fact."" A mitigated negative declaration, rather than a full EIR, may be approved for a project only if: 1) revisions in the project, before release of the Initial Study for public review, will clearly avoid or mitigate effects beyond significance, and 2) there is no substantial evidence, in light of the whole record, that the revised project may have a significant impact on the environment.9 Staff Analysis. The legal question raised by this comment revolves on the definition of such terms as "substantial evidence"and `fair argument." The Public Resources e Pub. Resources Code,§21000 et seq. s Pub. Resources code,§21177,subds.(a)and(b). See Pub. Resources Code,§§21080,subd. (d),2.1082.2, subd. (d); Cal. Code Regs.,tit. 14,eh. 3("CEQA Guidelines"), § 15064, subd. (f)(1); No Oil, Inc. v. City of Los Angeles(1974) 13 Cal.3d 68,75(stating that CEQA "requires the preparation of an EIR whenever it can be fairly argued on the basis of substantial evidence that the project may have significant environmental impact."). e Pub. Resources Code,§21080,subd.(e)(1). s Pub. Resources Code, §§21064.5,21080, subd. (c)(2). _. July 13,2004 Board of Supervisors Hearing on Appeal of Request for 40-Lot Subdivision, f=ile SDO18533 Page 20 Code states that the following do not constitute substantial evidence: a) argument; b) speculation; c) unsubstantiated opinion or narrative; d) clearly inaccurate or erroneous evidence; and e) evidence of social and economic impacts that do not contribute to, and are not caused by, physical impacts on the environment. Conversely, the following constitute substantial evidence: a) facts; b) reasonable assumptions predicated on facts; and c) expert opinions supported by facts. An agency's determination of whether information in the record constitutes "substantial evidence"boils down to a determination not only that the information is relevant and material but also that it is sufficiently reliable to have evidentiary value. To determine the reliability of the evidence, the lead agency must consider several factors, including: a) personal knowledge of the facts the individual testifying (subjective concerns, personal beliefs and rumors in the neighborhood are not substantial evidence). Furthermore, opinions may constitute substantial evidence only when they are provided by an individual qualified to render an opinion on the subject. Ultimately, the decision-making body considers all written comments and testimony and must evaluate that information to determine if it constitutes substantial evidence. in preparing the Initial Study and Mitigated Negative Declaration, staff considered all of the information available. However, CEQA determinations utilize scientific studies, engineering analysis and other technical data where available. Reliance is also placed on comments of jurisdictional agencies, and the professional opinions of engineering staff of the Public Works Department (traffic, hydrology) and County consultants (engineering geology, biologic resources). In this case, the technical studies provided by the applicant were peer reviewed(except for the archaeologic report). The identification of significant impacts and mitigation measures relied heavily on these studies. No jurisdictional agencies expressed opposition to the Mitigated Negative Declaration. At the County Planning Commission hearings, testimony was received on many technical subjects (i.e., biologic resources, traffic, geology and grading). The County Planning Commission considered all testimony and gave it the weight it deemed appropriate. Comment#2: Substantial Evidence. As plainly stated by California's Court of Appeal, "if substantial evidence in the record supports a `fair argument' significant impacts or effects may occur, an EIR is required and a negative declaration cannot be certified."1° California case law also makes it clear that a mitigated negative declaration cannot be approved if it relies on mitigation measures that have not been formulated at the time of project approval." 1°Quail Botanical Gardens v. City of Encinitas(1994)29 Cal.App.4th 1597, 1601-02. See Gentry v. City of Murrieta(1995)36 Cal.App.4th 1359, 1395(holding that adoption of mitigation measures is improperly deferred where City's mitigated negative declaration reserved the right, after project approval,to require a study of affected,listed species and compliance with mitigation measures that might be recommended by the study); Sundstrom v. county of Mendocino(1988)202 Cal.App.3d 296, 306-314(holding that county cannot rely on other agencies'ability to subsequently devise means of avoiding project's potentially significant impacts). __ July 13,2004 Board of Supervisors Hearing on Appeal of Request for 40-Lot Subdivision, Fife SD018533 Page 21 The proposed project cannot be approved at this time, because the Initial Study that has been prepared by the County is legally inadequate. As the following discussion demonstrates, the information that is contained in the Initial Study is inadequate to support a determination that all of the proposed project's potentially significant, adverse environmental effects have been clearly avoided, or mitigated to a "less-than-significant" level." Accordingly, the proposed project cannot be approved until, at the very least, a revised environmental document is prepared for the County's consideration. Staff Analysis: Statements by members of the public may constitute substantial evidence supporting a fair argument that a project may have a significant effect on the environment. However, the statements must be supported by an adequate factual foundation. Public comments that are not based on a specific factual foundation do not constitute substantial evidence. An adequate foundation may be established by relevant personal observations. Some confusion about whether public comments are substantial evidence may have been created by the commentor. For example, public comment that asserts extension of Marin Road to the project will lead to traffic impacts can be disregarded as speculation, since the comment is not sufficiently reliable to constitute substantial evidence. Conversely, information on the existing condition of Marin Road is substantial evidence. The initial Study evaluation of traffic impacts relied upon the judgment of the professional staff of the Public Works Department. Comment #3: Aesthetics. The County's Initial Study acknowledges that the proposed project, which proposes to build 40 lots on a steep, 10-acre hillside, "will substantially change the visual character of the site as viewed from lots in the adjacent neighborhood."13 But the Initial Study then goes on to opine that the project"could fairly be considered 'infill' development.1114 No substantial evidence is cited to support this conclusory opinion. The Initial Study then states that a "well planned project that protects the channel of Garrity Creek and which complies with the standards/requirements of the CDFG, RWQCB and Corps of Engineers, will not substantially degrade the existing visual character of the site."15 Staff Analysis: The Transportation and Circulation Element identifies scenic routes, and Scenic Routes Policies are identified as Policies 5-34 through 5-43. These policies are aimed at protection of views from scenic routes. The Open Space Element identifies scenic ridges and waterways, and implementing Scenic Resource Policies are identified as Policies 9-90 through 9-27. These policies are aimed at protection of major scenic ridges and scenic qualities of the San Francisco 12 Pub. Resources Code,§§21064.5;21080 subd. (c). I$Contra Costa County Community Development Dept., Environmental Checklist Form, Project Title: Subdivision 8533,CDD File#SDO18533(Hillview)(Oct. 13,2003)(hereinafter"Initial Study") at p. 5. 14 Initial Study, at p. 5. The project consists of 15-30 percent slopes. (Initial Study, at p.6.) 15 Initial Study, at p. 5. July 13, 2004 Board of Supervisors Hearing on Appeal of bequest for 40-Lot Subdivision, File SD018533 Wage 22 Bay/Delta Estuary system. In this case, the site is not visible from a designated scenic route, and it is not on the flank of a designated scenic ridge. The project will be visible from the residential neighborhood surrounding the site, but there will be no long range views of the site because of its topographic setting. The project involves relatively minor grading and the biologic resource mitigation measures assure protection and enhancement of the biologically-sensitive portions of the project. The May 25th staff report presents elevations of the proposed residences (see Appendix C, Figures 14 through 16). The dwellings shown in those figures indicate executive style homes that are at a substantially lower elevation than the surrounding homes, so they should not obstruct long-range views of the neighbors. Based on consideration of these factors, the visual impact of the project is less-than- significant. Comment #4: Aesthetics. No substantial evidence supports the County's conclusory statements that the project will not have significant, adverse aesthetic impacts. First, whether or not the site is "planned for residential development" is not responsive to CEQA's requirement that change to the existing environment be analyzed. Second, none of the agencies cited in the Initial Study are responsible for aesthetic impacts, and so complying with these agencies' standards and requirements regarding 1) wildlife mitigation, 2) water quality protection, or 3) wetland mitigation will not clearly ensure that the project will have no aesthetic impacts. On its own terms, the Initial Study declares that the project will result in substantial changes to the visual character of the area. Unless and until specific and identifiable changes are incorporated into the project that will clearly reduce such substantial changes beyond significance, the project may not be approved based on a negative declaration. Staff Analysis: The comment letter suggests that residential development of the site from the adjoining properties will result in substantial changes in the views and that this change is a significant impact. What is not recognized by the comment is that County policies address views from officially designated scenic routes and views of scenic ridges. In this case the project is visible from adjacent residences. However, the proposed homes are to be at a lower elevation than the adjacent properties. Therefore, the project is not expected to compromise the rear-yard privacy of the adjacent homes, and it is not expected to modify their long-range views. The short- range views will change, but a quality project that minimizes grading and protects key biological resources is not expected to create any significant visual quality impacts. Comment #5: Air Quality. The mitigated negative declaration acknowledges that the project may have both short-term air quality effects associated with construction, and long- term air quality effects associated with commute trips. Rather than quantify or analyze these effects in any way, the Initial Study states that the Bay Area Air Quality Management District has elected not to respond to the Initial Study. July 13,2004 Board of Supervisors Hearing on Appeal of Request for 40-Lot Subdivision,File 517018533 Gage 23 Again, no substantial evidence in the record supports the Initial Study's conclusion that the project clearly will have no significant, adverse short- or long-term air quality effects. The lack of comment from BAAQMD's is not substantial evidence that the project will not have adverse effects on air quality. As just one example, other parts of the Initial Study make it clear that substantial movement of earth and grading will be required to carry out the proposed project.' But not a single mitigation measure is proposed to control fugitive dust associated with such earth movement and grading. Construction-level mitigation measures that are typically included in residential construction projects of this type as a matter of course include covering filled truck beds, wetting or seeding disturbed areas depending on length of exposure, and monitoring weather conditions. The Initial Study also fails to address all other construction related air impacts, including, but not limited to diesel particulate and volatile organic emissions. Put simply, absence of evidence is not evidence of absence. Under CEQA, the burden of environmental review and investigation is on the lead agency. At the least, the Initial Study must be revised to acknowledge that potentially significant air quality impacts may exist and to incorporate measures that will clearly avoid such impacts or reduce them to less than significant levels. Since the Initial Study entirely fails to investigate, let alone identify, potentially significant impacts related to air quality, any revised Initial Study with corresponding mitigation measures would also have to be recirculated for public review and comment before the project can be approved." The agency cannot hide behind its utter failure to gather any air quality data, and must, at the very least, take the affirmative steps necessary to engage in a meaningful evaluation of the direct, indirect and cumulative air quality impacts that the project may have." Staff Analysis: Both the U.S. Environmental Protection Agency (USEPA) and the California Air Resources Board have established ambient air quality standards for common pollutants. These ambient air quality standards are levels of contaminants which represent safe levels that avoid specific adverse health effects associated with each pollutant. The federal and California state ambient air quality standards are summarized in Table 3 for important pollutants. The federal and state ambient standards were developed independently with differing purposes and methods, although both processes attempted to avoid health-related effects. As a result, the federal and State standards differ in some cases. In general, the California state standards are more stringent. This is particularly true for ozone and PM,a. 16 Initial Study, at pp. 15-20(noting requirement of substantial grading and presence of highly erosive soils. 17 CEQA Guidelines;§ 15073.5, subd. (b)(1). 18 Sundstrom, supra,202 Cal.App.3d at 311. _ _. _... July 13,2004 Board of Supervisors Hearing on Appeal of Request for 40-Lot Subdivision, File SD018533 Page 24 The USEPA established new Table 3 national air quality standards for FEDERAL AND STATE AMBIENT ground-level ozone and for fine AIR QUALITY STANDARDS particulate matter in 1997. The Federal Averaging Primary State existing 1-hour ozone standard of Pollutant Time Standard Standard 0.12 parts per million (ppm) will be ozone 1-Hour 0.12 ppm 0.09 ppm phased out and replaced by an 8- 8-Hour 0.08 ppm hour standard of 0.08 ppm. New Carbon 8-Hour 9.0 ppm 9.0 ppm Monoxide 1-Hour 35.0 m 20.0 m national standards for fine Nitrogen Annual 0.05 ppm -- Particulate Matter (diameter 2.5 Dioxide 1-Hour - 0.25 m microns or less) have also been Sulfur Dioxide Annual ; 0.03 ppm established for 24-hour and annual 24-Hour 0.14 ppm 0.05 ppm averaging periods. The current 1-Hour -- 0.5 ppm PM,p standards were retained, but PM10 Annual 50 mg/m' 20 mg/m3 24-Hour 150 m /m3 50 m /m3 the method and form for 3 3 PM2.r, Annual 15 mg/m 12 mg/m determining compliance with the 24-Hour 65 Mg/M3 Standards were revised. Lead 30-Day Avg. -- 1.5 mg/m3 Month Avg. 1.5 mg/m3 -- Implementation of the new ozone ppm=parts per million and Particulate Matter standards mg/m3=micrograms per cubic meter was complicated by a lawsuit. On May 14, 1999, the Court of Appeals for the District of Columbia Circuit issued a decision ruling that the Clean Air Act as applied in setting the new public health standards for ozone and particulate matter, was unconstitutional as an improper delegation of legislative authority to the USEPA. The decision was appealed to the Supreme Court, and on February 27, 2001, the Supreme Court unanimously ruled in favor of the USEPA, clearing the way for implementation of the new standards. During the interim period, the California Air Resources Board developed recommended designations for California air basins, proposing that the Bay Area be designated as "non-attainment"for the new 8-hour ozone standard. Regarding particulates, the state had adopted a standard for PM2.5 that is different than the Federal standard. However, to determine if an area is an "attainment" or "non- attainment" area requires a monitoring network for PM2.5 and a minimum 3-year monitoring period. if the San Francisco Bay Region is found to be a "non- attainment"area for PM2,,5, an attainment plan will be developed by the regulatory agencies. Regional Air Quality Plannin_ . Both the federal and state governments have enacted laws mandating the identification of areas not meeting the ambient air quality standards and development of regional air quality plans to eventually attain the standards. For the federal standards, the entire Bay Area is a non-attainment area for ozone. The Bay Area is attainment or unclassified for other federal standards. The current federal regional air quality plan is the Bay Area 2001 Ozone Attainment Plan . It was prepared by the Bay Area Air Quality Management District(BAAQMD), the Metropolitan Transportation Commission, and the Association of Bay Area Governments. The plan was prepared in response to USEPA's partial approval and July 13, 2004 Board of Supervisors Meering on Appeal of Request for 40-Lot Subdivision,file SD018533 Page 25 partial disapproval of the Bay Area 1999 Ozone Attainment Plan. The responsible agencies have begun an update to the federal regional ozone plan and completion is expected in 2004. The updated plan will consider measures to reduce emissions of ozone-forming pollutants from transportation sources, industrial facilities, commercial processes and other sources. Under the California Clean Air Act, the Bay Area is a non-attainment area for ozone and PM,r,. and either "attainment"or "unclassified"for other State standards. The California Clean Air Act requires local air pollution control districts to prepare air quality attainment plans. Unlike a federal air quality plan, rather than planning for attainment by a specific date the State plan must provide for district-wide-emission reductions of five percent per year averaged over consecutive three-year periods. If this is not possible, then the plan must provide for adoption of "all feasible measures on an expeditious schedule." The Bay Area 2000 Clean Air Plan is the strategy to attain the more stringent California ozone standard. The California Clean Air Act requires the BAAQMD to update the Clean Air Plan every three years. The 2003 update to the Clean Air Plan will be occurring at the same time as the update of the federal plan. The 2003 update will include a control strategy review to ensure that the plan continues to include "all feasible measures"to reduce ozone, an update of the district's emission inventory, estimates of emission reductions achieved by the plan, and an assessment of air quality trends. Significance Criteria. The BAAQMD"' and CEQA Guidelines (2003) define a significant impact of a project on the environment as one that would: . Contribute to carbon monoxide (CO) concentrations exceeding the State Ambient Air Quality Standard of nine parts per million (ppm) averaged over eight hours or 20 ppm for one hour, or • Generate criteria air pollutant emissions in excess of the BAAQMD annual or daily thresholds. The current thresholds are 15 tons/year or 80 poundslday for Reactive Organic Gases (ROG), Nitrogen Oxides (NOx) or PM,o. Any proposed project that would individually have a significant air quality impact would also be considered to have a significant cumulative air quality impact; or • Create or frequently expose members of the public to objectionable odors would be deemed to have a significant impact; or • Expose sensitive receptors or the general public to substantial levels of toxic air contaminants or pollutant concentrations; or • Conflict with or obstruct implementation of the applicable air quality plan; or Violate any air quality standard or contribute substantially to an existing or projected air quality violation; or 'g Bay Area Air Quality Management District, BAAQMD CEQA guidelines,April 1996(Revised December 1999). July 13,2004 Beard of Supervisors Hearing on Appeal of Request for 40-Lot Subdivision,File 517018533 Page 26 Result in a cumulatively considerable net increase of any criteria pollutant for which the project region is non-attainment under an applicable federal or state ambient air duality standard (including releasing emissions which exceed quantitative thresholds for ozone precursors). Impact Assessment. The BAAQMD significance thresholds for construction dust impacts are based on the appropriateness of construction dust controls. The BAAQMD guidelines provide feasible control measures for construction emission of PM,d, if the appropriate construction controls are to be implemented, then air pollutant emissions for construction activities would be considered less than significant, in this case, the project requires a grading permit and the Grading Ordinance specifically requires control of "dust." Further, BAAQMD does not respond to agency referrals for residential projects of less than 350 units because small projects do not warrant review by their staff. Staff review of the proposed 40-unit project in light of the significance criteria determined that the project does not pose a significant air quality impact, and the project is expected to have a minor cumulative impact on regional air quality. Comment #B: Biological Resources. The Initial Study attempts to re-characterize the project's biological and other impacts in a last minute "peer review" by Monk and Associates that purportedly summarizes the various biological reports that have been submitted to date.20 Because the standard of review for a mitigated negative declaration is whether substantial evidence in the whole record supports a "fair argument " that the project may have significant adverse effects, the Monk and Associates "peer review" cannot be relied upon to negate or discount the actual substantial evidence in the underlying studies and reports indicating that the project may, in fact, have significant, adverse effects on biological and other resources that have not been mitigated to "less- than-significant" levels." In addition, our client and other members of the public have also submitted numerous questions and comments raising a "fair argument" that the project may have significant, adverse biological impacts that are not adequately addressed in the Initial Study. This letter hereby incorporates by reference, and re-raises as substantive objections, all such comments. Staff_Analysis: The commentor places reliance on public controversylpublic comment to be the basis of a `fair argument" of the project's biological resource impacts. In response to this assertion, these are the pertinent facts. There have been technical studies that followed the protocols and expectations of the California Department of Fish and Game. Those studies, along with the peer review by the County's biologic consultant (Monk & Associates) and comment letters from the California Department of Fish & Game, are listed in Table 2 of this Board Order(see page 97). 20 Initial Study, at p. 10. 21 Pub. Resources Code, §§21080,subd. (d),21082.2,subd. (d). July 13,2004 Burd of Supervisors Hearing on Appeal of Request for 40-Lot Subdivision, File S©©18533 Mage 27 Statements made by the members of the public may constitute "substantial evidence supporting a fair argument" that the project may have a significant effect on the environment. However, to constitute "substantial evidence,"the statements must be supported by an adequate factual foundation. Public comments that are not based on a specific, factual foundation do not constitute substantial evidence, nor does speculation about a project's impacts have evidentiary value. • The Initial Study and Mitigated Negative Declaration were forwarded to the State Clearinghouse, and were reviewed by the California Department of Fish & Game, and by the Regional Water Quality Control Board. The Initial Study and Mitigated Negative Declaration were also reviewed by the U.S. Army Corps of Engineers. There is no evidence that those jurisdictional agencies, who have primary responsibility for protection of special status plant and animals, wildlife habitat and water quality, have any concernslopposition to adoption of the Mitigated Negative Declaration • The County Planning commission considered all written comments and testimony in reaching its decision, including the letter from the Law Offices of J. William Yeates and the testimony of Keith Wagner, who represented the firm at the County Planning Commission hearing on May 25, 2004. Comment #7: Landslide/Slope Stability. The Initial Study acknowledges that the project is located on "expansive soil, . . . creating substantial risk to life or property[.]"22 The initial Study claims that such impacts will be "less-than- significant" with mitigation incorporated. However, the mitigation measures proposed to reduce such impacts to insignificance relies on the post-approval preparation of an "Updated Geotechnical Report and Remediation Plan" that will include "additional subsurface exploration and evaluation of slope stability."23 The Initial Study violates CEQA because it defers meaningful evaluation of the project's impacts with regard to landslides and slope stability until well after the project is approved. This deferral is particularly troublesome in light of CEQA's requirement of a mandatory finding of significance for any potential project impacts that may result in "substantial adverse effects on human beings.1124 If the potential exists that grading permits cannot be issued for the project due to landslide potential, that information should be adequately investigated by the County and disclosed to the public before project approval. Staff Analysis: The initial Study prepared for the project utilized a geotechnical report prepared by a licensed engineer. The scope of work including the logging of ten borings, engineering analysis of the data gathered, and preparation of a report documenting the investigation and presenting specific standards and criteria for grading, drainage and foundations. The geologiclgeotechnical hazards included 22 Initial Study, at p. 15(response VI.D.). 23 Initial Study, at p. 17. 24 CEQA Guidelines,§ 15065,subd. (d). July 13,2004 Board of Supervisors Hearing on Appeal of Request for 40-Lot Subdivision,File Sd018533 Page 28 expansive soils, soil creep and landsliding. Nevertheless, the report concludes that development of the site is feasible from a geotechnical perspective. The grading plans and geotechnical report were peer reviewed by the County Geologist. That peer review included a site visit, along with review of pertinent literature. The key findings of this review may be summarized as follows: • A published photointerpretative landslide map issued by the U.S. Geological Survey reports no landslides on the site. (A copy of this map is presented in the May 25m staff report (see Appendix C, Figure 92). • in recognition of landslide and other geologic hazards in the El Sobrante area, the City of Richmond in concert with Contra Costa County, retained Alan Kropp & Associates to prepare a geologic hazards map of the EI Sobrante area, including the site of SDO 18533. This report, which was issued in 1991, showed one small area of landsliding on the project site. This map is in good agreement with the landslide mapped my AMSO Consulting Engineers in their 2001 report. The County peer review geologist identified three impacts and mitigation measures (see Appendix E). These impacts and mitigation measures were translated into Conditions of Approval #17 through #19. The commenter incorrectly suggests that these mitigation measures represent deferred mitigation. However, they are "performance criteria"to ensure that final grading plans and final geotechnical recommendations are consistent with the intent of the standards and criteria in the AMSO report. Comment#8: Erosion and Sedimentation. The Initial Study acknowledges that the project has the "potential to cause significant erosion of unprotected slopes, and downslope sedimentation both on- and off-site.1125 In order to offset short-term erosion impacts associated with construction, the Initial Study requires the applicant to submit an erosion control plan prior to obtaining a grading permit.211 however, no specific performance standards are included, either directly or by reference, in the Initial Study indicating how the effectiveness of the applicant's erosion control plan will be measured to ensure that the project's admitted, potentially significant erosion impacts will be mitigated to "less-than- significant" levels. Again, the deferral of the development of such plans until after project approval violates CEQA. In addition, the Initial Study claims that long-term erosion impacts will be mitigated by "incorporat[ing] the appropriate design, construction and continued maintenance of one or more" proposed long-term measures, but again, fails to establish any performance standards that clearly indicate that erosion will be reduced to "less-than-significant" levels by incorporation of any or all of the proposed measures. Moreover, one of the proposed long-term mitigation measures simply states that "[c]oncentrated runoff shall not be permitted to drain over cut or fill slopes,1127 This is a normative statement, it is not a 25 Initial Study, at p, 18. 26 Initial Study, at p. 18. 27 Initial Study at p. 19. July 13, 2004 Board of Supervisors Hearing on Appeal of Request for 40-Lot Subdivision, File SD018533 Page 29 mitigation measure.2' The Initial Study might as well announce that "rain exceeding half- inch in any 24-hour period shall not be permitted to fall on the project site." The unanswered CEQA question is, what specific changes will be made in the project to ensure that runoff will not drain over cut or fill slopes, whether "permitted" or not? Staff Analysis: The Initial Study identifies "Erosion and Sedimentation" as a potentially significant impact. The impact statement and associated mitigation measure can be found in Appendix E, pages 18-19. The grading plan has evolved during the past 3 years (and further changes may result from the action taken by the Board of Supervisors on the appeal). Consequently, performance-based criteria were utilized for this mitigation measure. The mitigation measures included three measures to control erosion during the construction period and four measures to control long-term erosion. Those mitigation measures were translated into COA #fig. It should be recognized that the project will require a grading permit, and that permit will require issuance of a SWPPP by the Regional Water Quality Control Board, and approval of an Erosion Control Plan by the County Building Inspection Department. The intent of the mitigation measure (and associated COA #19) is to guide the development of the Erosion Control Plan. Under CEQA, requirements that an applicant complete certain post-approval studies (such as the Erosion Control Plan) or that an applicant comply with certain laws after project approval (such as the County's Grading Ordinance) may be adequate mitigation. Such adequate mitigation measures are not undermined by the fact that such studies will provide the County with more information regarding how to proceed in permitting of grading. Comment#9: Expansive Soils and/or Bedrock, As with the discussion of landslides and slope stability, the Initial Study admits that expansive soils may result in potentially significant adverse environmental effects, but improperly defers the preparation of an "Updated Geotechnical Report" to describe such impacts and to propose alternatives or mitigation measures to offset such impacts until after project approval.21, Staff Analysis: The Initial Study identifies "Expansive Soils and/or Bedrock" as a potential significant impact. The impact statement and associated mitigation measure can be found in Appendix E, pages 19-20. The AMSO geotechnical report for the project concluded that the soils were expansive, and it provided foundation recommendation to mitigate that geotechnical hazard. However, further design details are needed prior to issuance of building permits (spacing and diameter of pier holes; typela mount of rebar, depth of pier holes; preparation of pier holes (i.e., removal of loose cuttings from floor of pier prior to pouring concrete). The intent of this mitigation measure was to provide performance-based criteria for the final geotechnical report. 28 CEQA Guidelines,§ 15370. 29 initial Study,at p.20; Gentry, supra, 36 Cal.AppAth at 1396. See discussion at Part IV.A, supra. July 13,2004 Board of Supervisors Tearing on Appeal of Request for 40-Lot Subdivision,File SDO18533 Page 30 Comment #10: Hydrology and Water Quality. The Initial Study notes that the City of Richmond has submitted comments 1) that "identified existing water problems and landslides, as well as `springs' within the Hilltop Green development," 2) that drainage through Hilltop Green is "barely manageable at present," and 3) that drainage from the project site will flow through Hilltop Green.30 Accordingly the City requested the County to prepare an EIR to analyzed downstream effects on drainage. The Initial Study first improperly attempts to shift the County's affirmative burden to affirmatively investigate such impacts to the City. CEQA does not allow the County to excuse itself from analyzing the project's effects on the existing environment, which includes the existing, acknowledged drainage problems in Hilltop Green.3' The Initial Study then states that "[t]he problems experienced by Hilltop Green appear to be associated with deficiencies to the internal drainage structures."32 The Initial Study's admission that drainage problems in Hilltop Green exist (whether due to "internal" problems or not) cannot be reconciled with its attempt in the very next sentence to dismiss drainage problems at Hilltop Green as only "public controversy" or "speculation." The Initial Study then goes on to admit that the drainage studies that were prepared by the County for the project only "evaluated the internal drainage system of the project and not the adequacy of downstream drainage facilities.1133 The Initial Study then notes that the applicant's drainage report, claiming that runoff from the site will be kept at pre- development levels, only analyzed a 25-year flood event. Perhaps recognizing the weakness of its own analysis, the Initial Study concludes by stating that changes will be required in the project "as part of the final design and plan review process" to "ensure that the project does not have an adverse effect on the reported downstream drainage inadequacies within the Hilltop Green project, Interstate 80, or any other downstream drainage facilities." As before, the Initial Study, has unlawfully deferred conducting an adequate investigation of the project's impacts on regional drainage, and alternatives and mitigation measures to reduce or avoid such impacts to "less-than- significant" levels, or establishing performance .standards for such impacts, until after project approval. Staff Analvsis: There are five key points that appear to be overlooked by the commentor: • The FEMA flood insurance maps do not indicate any flooding problem between the site and 1-80. The FEMA map for the City of Richmond that show the Hilltop Green project is identified as panel 015D (Revised September 7, 2001). There 30 Initial Study, at p.23. 31 Pub. Resources Cade,§§21060.5,21080,subd. (d). 32 Initial Study, at pp.23-24. 33 Initial Study, at p. 24. July 13,2004 Board of Supervisors Hearing on Appeal of Request for 40-Lot Subdivision,File SD018533 Page 31 is no indication of inundation areas in Hilltop Green or along the Garrity Creek channels, and there is no evidence that the City of Richmond has called the reported flooding problem in Hilltop Green to the attention of FEMA. • The West County Wastewater District identified a drainage problem in the Hilltop Green Project but they also reported the drainage problem has been corrected. • The design storm for a watershed of 1 to 4 square miles by County Ordinance is the 25-year storm. A hydrology report, submitted by the applicant concludes that post-development flows can be kept at the predevelopment level. • The duty of the proposed 40-lot project is mitigate its drainage impacts and not to analyze and solve the existing drainage problems in the 500-lot Hilltop Green subdivision. • The Public Works Department has reviewed the information provided by the City of Richmond and the information provided by the Hilltop Green Homeowners Association. The engineers of the Public Works Department and Flood Control District were provided with the limited technical data submitted by the City of Richmond and information provided by the Hilltop Green Homeowners Association. The conclu- sions of that review were that there is no fact-based information that indicates that the proposed subdivision poses a significant drainage impact. Furthermore, that the hydrology report provided by the applicant, while useful for characterization of the general runoff characteristics of the project, did not follow the methodology recognized by the County for design of drainage improvements. Therefore, the Conditions of Approval require further analysis to confirm the project engineer's preliminary estimate that the project will not increase the peak flows exiting the site for the "design storm"(see Conditions of Approval#21.C, 21.D, 21.E and 50-57). Because modifications in the design of a project can affect the runoff characteristics of the project, the final drainage design studies are not performed during the CEQA review of land development projects. The County Planning Commission's approval of the project included drainage-related conditions of approval that are listed in Table 4. Comment#11: Land Use and Planning. The Initial Study recites General Plan Policy 10- 29: "Significant hillsides with slopes over 26 percent or more shall be considered unsuitable for types of development which require extensive grading or other land disturbances.1134 As previously noted, the Initial Study states that the project is proposed for areas that contains slopes greater than 26 percent, and will require extensive grading and other land disturbance. The Initial Study's claim that "compliance with Policy] . . . 10-29 [is] subject to interpretation" cannot be squared with case law making it clear that land use approvals must be vertically consistent with mandatory general plan policies. Regardless of the 34 Initial Study, at p.26,Table 9(emphasis added). July 13,2004 Board of Supervisors Hearing on Appeal of Request for 40-Lot subdivision, File SD018533 Page 32 County's "practice" in the past, the fact remains that the General Plan forbids projects that require extensive grading on hillsides of more than 26 percent. The Initial Study is defective because it fails to acknowledge that the proposed project is inconsistent with mandatory policies in the general plan." Moreover, the project cannot be approved as proposed because it is facially inconsistent with the County's mandatory general plan policies. Staff Analysis: The Initial Study (page 16) indicates civil engineers for the project estimate grading to be 15,234 cubic yards of cut and 20,859 cubic yards of fill. For a 40-lot project, this averages 520 cubic yards of fill/U; and 380 cubic yards cutllot. Safety Element Policy 10-29 is presented below: Policy 10-29: Significant hillsides with slopes over 26 percent or more shall be considered unsuitable for types of development which require extensive grading or other land disturbance. The commentor suggests that the project requires "extensive grading„ without providing the basis of that conclusion. The General Plan policy does not define extensive grading. The pertinent facts may be summarized as follows: 36 initial Study, p.25(purporting to claim that conflicts with the County's General Plan are"Less Than Significant"). July 13,2004 Board of Supervisors Hearing on Appeal of Request for 40-Lot Subdivision, File SDO18533 Page 33 Table 4 DRAINAGE-RELATED CONDITIONS OF APPROVAL ADOPTED BY THE COUNTY PLANNING COMMISSION COA#21 C. Should downstream drainage facilities prove to be inadequate, construct off-site improvements to prevent the project from worsening the existing conditions. Alternative, construct on-site detention facilities to Flood Control District standards. The design criteria for these drainage structures is to reduce post project peak flood flows to predicted pre-project levels. Each phase of development shall be reviewed by the Public Works Department to ensure compliance with this condition. COA#21 D. Maintain existing drainageways above ground where feasible(i.e., use an arch culvert at the Royal Oaks Drive crossing of Garrity Creak and only for the minimum re uired crossin distance). COA#21 E. The arch culvert crossing of Garrity Creek shall be designed to jurisdictional standards such that they do not constrict flows, including the 1 Utz-year flood flow. Design of the culvert and associated structures must be reviewed and approved by the County Public Works Department, COA#50. Division 914 of the Ordinance Code requires that all storm waters entering or originating within the subject property shall be conveyed,without diversion and within an adequate storm drainage facility,to a natural watercourse having definable bed and banks,or to an existing adequate public storm drainage facility that conveys the storm waters to a natural watercourse. Garrity Creek is not considered an acceptable ultimate discharge point for the purposes of the County Ordinance Code. Additional drainage inventory and analysis of downstream facilities is necessary to determine the ultimate point of discharge into a natural watercourse, and additional off-site construction and/or on-site mitigation per said Code may be required. i COA #51. Storm drainage facilities required by Division 914 shall be designed and constructed in accordance with specifications outlined in Division 914 and in compliance with design standards of the Public Works Department. COA#52. Storm drainage originating on the property and conveyed in a concentrated manner shall be prevented from draining across the sidewalks and driveway(s). COA#53. The applicant shall dedicate a public drainage easement over the drainage system that conveys storm water run-off from public streets. COA#54. In the absence of public drainage easements,the applicant shall create private drainage easements over portions of the drainage system that convey storm water run-off from more than Lsle lot or parcel. l COA #55. Private on-site storm drain easements,if necessary,shall have a minimum width of 10 feet. COA#56. Applicant shall relinquish"development rights"over that portion of the site that is within the setback area of Garrity Creek.The structure setback shall be determined using the criteria outlined in Chapter 914-14,"Rights of Way and Setbacks" of the Subdivision Ordinance. Develo went rights shall be conveyed to the County by grant deed. COA #57. The applicant shall be required to comply with all rules, regulations and procedures of the National Pollutant Discharge Elimination System(NPDES)for municipal construction and industrial activities promulgated by the California State Water Resources Control Board,or any of its Regional Water Quality Control Boards(San Francisco Bay-Region 1€). Compliance shall include developing long-term best management practices(BMPs)for the reduction or elimination of storm water pollutants. The project design shall incorporate,wherever feasible,the following long term BMPs in accordance with the Contra Costa Clean Water Program for the site's storm water drainage: • Provide educational materials to new homebuyers. • Stencil advisory warnings on all catch basins. • Provide options for grass pavers or other semi-pervious paving systems for walks,drives and patios. i Slope driveways and weakened plane joints to sheet flow onto planted surfaces where feasible. • Prohibit or discourage direct connection of roof and area drains to storm drain systems or through-curb drains. • Other alternatives,a uivalent to the above,as ageroved by the Public Works De artment. • The project minimizes the use of graded pads. Instead, most residences are to closely conform with the natural terrain. The Staff Report for the CPC presents elevations for both downslope and upslope lots (see Figures 14 through 96) that indicate this approach to development. • Roads in hillside areas of necessity require grading to comply with the width and grade standards of the County Ordinance Code. The VTM approach to control July 13,2004 Board of Supervisors Wearing on Appeal of Request for 40-Lot Subdivision, File SD018533 Page 34 of grading is the use of retaining walls at three locations to minimize the "footprint"of earthwork. A point not recognized by the commentor is that General Plan compliance is rarely, if ever,judged in a vacuum. There are Subdivision Ordinance provisions requiring a second access for this project, Housing Element policies that encourage buildout of residentially-designated parcels, Conservation Element policies that call for protection of significant biological resources; etc. it is in this broader context that General Plan compliance will be determined. A project that is considered to be sensitive to the various planning and environmental constraints can be deemed to be consistent with the General Plan, even if it involves (limited) grading of slopes steeper than 26 percent. Comment#12: Noise. As with construction-related air quality impacts, the Initial Study i5 completely devoid of any investigation of or limitations on construction-related noise impacts." The Initial Study fails to contain even the most basic noise control measures, such as limitations on hours of construction, that are included as a matter of course in most residential projects. As stated above, the County bears the affirmative burden under CEQA of at least considering the project's potential to have adverse noise effects on neighboring residents, and to propose mitigation measures or alternatives to mitigate such impacts. Because the negative declaration fails to even recognize the potential for such impacts, it must be revised and recirculated for public review before the project can be approved.37 With regard to long-term noise impacts, the Initial Study freely admits that noise levels will increase as the number of residences in the area increases from one to forty." The Initial Study lists several new sources of noise emissions, including air conditioners, lawn mowing, and outdoor recreational use.3' But, the Initial Study makes no effort at all to quantify or analyze such impacts, and claims —with no factual support — that long-term noise impacts will be "less-than-significant,"4' The project cannot be approved until the County provides some factual basis for its determinations regarding noise impacts. Staff Analysis: The Noise Element of the General Plan indicates noise levels on the site are within the range considered "normally acceptable" for residential development. The project is relatively small, the volume of grading is relatively minor, and the duration of buildout is short-term. For those reasons, these construction-related effects are not considered to be a significant impact. Factors considered by the County include: a) the relatively small size of the project (40 lots); b) the temporary nature of construction noise; c) the topographically low 36 Initial Study, p. 28. 37 CEQA Guidelines, § 15073.5,subd. (b)(1). 38 Initial Study, p.28. 39 Initial Study, pp.2829. 40 Initial Study, p.28. July 13,2004 Board of supervisors Hearing on Appeal of Request for 40-Lot Subdivision,File SDO18533 Page 35 elevation of the site that provides some shielding of adjacent parcels from noise; and d) the standard conditions of approval address the temporary effects of construction noise. Table 5 presents the noise-related conditions of approval adopted by the County Planning Commission. Table 5 CONSTRUCTION-RELATED NOiSE CONDITIONS OF APPROVAL ADOPTED BY THE COUNTY PLANNING COMMISSION COA#20A.All construction activities shall be limited to the hours of 7:30 a.m. B 5:00 p.m., Monday through Friday, and shall be prohibited on state and federal holida s. COA#2013.The project sponsor shall require their contractors and subcontractors to fit all internal combustion engines with mufflers ;I which are in good condition and shall locate stationary noise-generating equipment such as air compressors and concrete pumpers as i far away from existing residences as possible. COA#20C.At least one week prior to commencement of grading,the applicant shall post the site and mail to the owners of property within 300 feet of the exterior boundary of the project site notice that construction work will commence. The notice shall include a list of contact persons with name,title,phone number and area of responsibility. The person responsible for maintaining the list shall be included. The list shall be kept current at all times and shall consist of persons with authority to indicate and implement corrective action in their area of responsibility. The names of individuals responsible for noise and litter control,tree protection,construction traffic and vehicles,erosion control,and the 24-hour emergency number,shall be expressly identified in the notice. The notice shall be re-issued with each phase of major grading and construction activity. A copy of the notice shall be concurrently transmitted to the Community Development Department. The notice shall be accompanied by a list of the names and addresses of the property owners noticed and a map identifying the area noticed. COA#20E.Transporting of heavy equipment and trucks shall be limited to week days between the hours of 9:00 AM and 4:00 PM. and prohibited on Federal and state holidays, COA#2QG.Prior to issuance of a grading permit,the applicant shall provide documentation to the Community Development Department of the proposed approach to achieve full compliance with COA#20 requirements by all contractors and subcontractors within this project i.e. reference" eneral notes"in the UradiM glanLrovislons in buildin and grading contracts or other equally effective measures j. 11 Comment #13: Mandatory Findings of Significance. As noted above, the deferral of investigation of the project's potential for landslides suggests that the project may have "substantial adverse effects on human beings." Unless and until this potential impact is adequately investigated and clearly mitigated to "less-than-significant" levels a mandatory finding of significance is required for the project based on its uncertain potential for impacts on humans.°' Staff Analysis: Under CEQA and its Guidelines, an EIR must be prepared when certain specified impacts may result from a project. When one of the specified impacts may result, a public agency must make a mandatory finding of significance. In effect, a finding by the lead agency that specified conditions exist makes the project's effects "significant"as a matter of law. However, under CEQA, the County has broad discretion to decide whether a project's impacts fall within one of the significance categories. Findings regarding these enumerated standards are included in the standard Initial Study checklist and each of the enumerated factors set forth in the Guidelines (14 Cal. Code Regs. § 15065) was evaluated as part of the Mitigated Negative Declaration (MND). The Initial Study did not identify any of the conditions for a mandatory finding of significance in connection with development of the project. These conditions are listed in Table 6, 41 CEQA Guidelines, § 15065,subd. (d). July 13, 2004 Board of Supervisors Hearing on Appeal of Request for 40-Lot Subdivision, File SD018533 Page 36 Table 6 LEGAL STANDARD FOR MAKING MANDATORY FINDINGS OF SIGNIFICANCE DETERMINATION An agency must find that a project may have a significant effect on the environment and thus must prepare an EIR if the '; ro'ect meets any one of the following conditions: I� 1. Has the potential to degrade substantially the quality of the environment. Pub Res Code§21083(a); 14 Cal Code Regs §15065(a). 2. Has the potential to achieve short-term environmental goals to the disadvantage of long-term environmental goals.Pub Res C§21083(b)(1); 14 Cal Code Regs§15065(b). 3. Has possible environmental effects that are individually limited but cumulatively considerable. Pub Res C §21083(b)(2); 14 Cal Code Regs§15065(c). j 4. Has environmental effects that will cause substantial adverse effects on human beings,either directly or indirectly.Pub Res C §21083(b)(3); 14 Cal Code Regs§15065(d). 5. Has the potential to eliminate important examples of major periods of California history or prehistory.14 Cal Code Regs§15065(a). Has the potential to eliminate important examples of major periods of California history or prehistory.14 Cal Code Regs§15o65(a). 6. May cause a substantial adverse change in the significance of a designated historical resource. Pub Res C§21©84.1. 7. May adversely affect plants or animals because,under 14 Cal Code Regs§15065(a),it has the potential to: • Substantially reduce the habitat of a fish or wildlife species; • Cause a fish or wildlife population to drop below self-sustaining levels; • Threaten the elimination of a plant or animal community; or • Reduce the number or restrict the ran a of an endangered,rare or threatened s ecies. Findings regarding these standards are included in the initial study checklists set forth in CEQA Guidelines, App G. cause several of these standards of significance are general and are largely phrased in subjective terms, they provide little guidance for decision-making. Although they are "mandatory,"lead agencies nevertheless have broad discretion to decide whether a project's impacts fall within one of the significance categories. In this case, no mandatory findings of significance may be made because the project does not meet any one the specifically enumerated conditions. In the example cited by the commentor, a question is raised as to whether landslide hazards pose a potential for "substantial adverse effects on human beings." In response, the applicant submitted a geotechnical report prepared by AMSO Consulting Engineers to evaluate site conditions and provide specific standards and criteria for site grading, drainage and foundation design. The hazards identified included expansive soil, soil creep (and the existing landslide area). In summary, there is a geotechnical report for this project that: a) concludes the site is suitable for residential development; and b) provides geotechnical recommendations for project implementation. This report was peer reviewed by the County Geologic consultant, who identified three impacts and provided mitigation measures intended to assure that the final geotechnical report analyzes the design elements of the project as approved by the County, adds additional subsurface data to confirm/refine the preliminary recommendations of the AMSO Consulting Engineer, and provides slope stability analysis. These mitigation measures are intended to provide on-going assurancelconfirmation that the design and construction of the project is sensitive to the geologiclgeotechnical constraints identified in the AMSO report. July 13, 2004 Board of Supervisors Hearing on Appeal of Request for 40-Lot Subdivision,File Sa418533 Wage 37 The staff report prepared for the County Planning Commission hearings included published landslide maps prepared by the U.S. Geological Survey (Figure 12) and 1991 map prepared by a geotechnical consultant retained by the City of Richmond and Contra Costa County to identify a geologic hazards in the El Sobrante Area (Figure 13). The map of the U.S. Geological Survey showed no landslides on the subject property. The more detailed landslide map of El Sobrante presented in Figure 93 shows a confirmed landslide in the area of Adam Court (at the approximate location of the landslide shown in the AMSC? report). Conversely, Figure 13 shows six landslides to the west of the site, within the Hilltop Green project area. Based on these published maps, the SDO18533 project site and the adjacent lands to the south, east and north may be sensitive to grading but they are generally suitable for development. Finally, the mitigation measures were incorporated into the Conditions of Approval adopted by the County Planning Commission (see Table 7). Comment#14: Brown Act/Public Participation Concerns. Finally, our client is concerned about the difficulty they have encountered in accessing the documents that will be before the Planning Commission for its May 25, 2004 hearing. Our client is under the impression that the most recent staff report for this project will not made available to the public until after the Community Development Department's close of business on Friday, May 21, 2004. For all practical purposes, this means that the earliest the public might be able to access the County's staff report for the project is less than 48 hours before the Planning Commission's proposed action on the project. California's Brown Act generally requires that any writings that are made available to a majority or all members of a board shall be made available to the public without delay.48$1 It is unclear whether the staff report and other documents that will be before the Planning Commission have been provided to the Planning Commissioners. If they have, the Brown Act requires staff to grant the public immediate access as well. Beyond the Brown Act, the public process is impaired when relevant reports and information regarding a project are not provided for public review with adequate time to meaningfully consider and understand their content. Without adequate time for such review, the holding of a "public meeting" becomes an empty symbolic event lacking public confidence or legitimacy. Especially in light of the well-known public concern and controversy over this project, fundamental fairness —as well as due process concepts of "open governance" and "public accountability' — require that the public should be given a 42 Gov. Code, §54957.5,subd. (a). July 13,2004 Board of Supervisors Hearing on Appeal of Request for 40-Lot Subdivision, Pile SD018533 Page 38 Table 7 GEOLOGIC,GEOTECHNICAL AND GRADING CONDITIONS OF APPROVAL ADOPTED BY THE COUNTY PLANNING COMMISSION COA#15. A. At least 30 days prior to issuance of a grading permit or installation of improvements or utilities,applicant shall submit a final geology, j soil,and foundation report meeting the requirements of Subdivision Ordinance Section 54-4.420 for review and approval of the Planning i Geologist. The report shall evaluate soils'conditions and provide specific criteria and standards to guide site grading,drainage and foundation design. This report shall include evaluation of the potential for slope failure,seismic settlement,lateral deformation of fill slopes, differential fill thickness, out/fill transition lots, and expansive soils by recognized methods appropriate to soil conditions discovered during subsurface investigation. It shall include slope stability analysis,design criteria for the proposed retaining walls,a remediation plan,and an assessment of the effect of project implementation on stability of adjacent lots. B. A letter-report update shall be required for issuance of building permits for individual lots. The'intent of this update is to have the geotechnical engineer review foundation,drainage(and any associated grading)plans,verifying that they comply with recommendations ' and the intent of the approved final geotechnical reports. improvement, grading, and building plans shall carry out the recommendations of the approved report. C. A representative of the project geotechnical engineer shall be onsite fulltime during foundation work(observing all pier drilling and I preparation work for all stabs)to verify compliance of construction practices and exposed conditions with the provisions of the approved geothnical. D. The Grading Completion Report shall include an as-graded map showing the location of fill,keyways and subdrains,as well as as- graded top2graphy. COA#16. Applicant shall record a statement to run with deeds to property acknowledging the approved report by title,author(firm),and date, calling attention to approved recommendations and noting that the report is available from the seller. COA#1.7. A. Graded slopes in the project shall not be steeper than 2.5:1. B. Engineered slopes on the perimeter of the graded area shall be contour-rounded to mimic natural terrain features. C. Where slopes are required that do not conform to the standards specified in COA#17.A,special engineering shall be required(e.g., reinforced earth,retaining walls). D. Slope stability analysis shall be provided for major slopes in the project. The standard for the project shall be safety factors of 1.5 for static conditions and 1.1 for pseudostatic conditions,and a seismic coefficient of 0.15. E. During stripping,the topsoil within graded areas(approximately 2 feet in thickness)shall be salvaged for use during final grading. For engineered slopes more than 10 feet high(with gradients of 2.5:1 or flatter)topsoil shall be"track-walked"onto finish graded slopes to facilitate revs ation. COA#19. At least 30 days prior to requesting the issuance of a grading permit,an Erosion Control Pian shall be submitted for the review and approval of the Grading Section of the Building Inspection Department. The Erosion Control Plan shall provide for the following measures: A. The Erosion Control Plan shall encompass the applicable provision of the Freshwater Marsh Riparian Vegetation and Trees Mitigation Measure(see Table 4,items c.and d.). B. The Erosion Control Plan shall encom ass the Erosion and Sedimentation Miti ation Measures resented in Table.5 followin . meaningful opportunity to review and respond to information that is provided to their elected or appointed decision-making officials. Staff Analysis: The staff report was delivered to the County Planning Commission in compliance with the provision of the Brown Act. The report was delivered to the Planning Commission during the mid-day on May 29, 2004. At that time, copies of the report were also delivered to the El Sobrante area May 21"' for review by representatives of the El Sobrante P&Z, Friends of Grarrity Creek and Hilltop Neighborhood Association. July 13, 2004 Board of Supervisors Hearing on Appeal of Request for 40-Lot Subdivision,File SDO18533 Page 39 Comment #15: Conclusions. As stated at the beginning of this letter, the Initial Study prepared for the proposed project is legally inadequate. The Initial Study 1) fails to acknowledge several of the project's potentially significant impacts, 2) defers the analysis of adverse environmental effects until after project approval, 3) defers the development of mitigation measures or alternatives until after project approval, 4) fails to establish meaningful performance standard for mitigation measures, 5) improperly places the burden on the public and other agencies to identify the project's potentially significant adverse environmental effects, and 6) fails to make required, mandatory findings of significance with regard to impacts to human beings. Moreover, the project cannot be approved because it is inconsistent with the County's mandatory general plan policy prohibiting projects that require extensive grading on slopes exceeding 25 percent. The Planning Commission should also put over any final decision on the project to a later meeting, and continue the opportunity for further public comment until all of the documents and reports that are to be taken under consideration by the Commission have been provided to the public with adequate time to allow those who are concerned about the project and its impacts to understand, and raise any concerns they may have about, the content of such information. 46 Gov. Code, § 54957.5, subd. (a). Staff Analysis: This comment reiterates statements previously made in this comment letter. Since there are no new comments, further response is not required. Comment #15: Conclusions. For the foregoing reasons, our client, Friends of Garrity Creek, opposes approval of the project at this time. Our client also hereby incorporates by reference all prior comments that they and all other parties have submitted regarding the proposed project. Contra Costa County should not approve the proposed project until a revised mitigated negative declaration is prepared that demonstrates, based on the "whole" of the record before the County, that all of the project's effects have been mitigated to "less-than-significant" levels, or until an EIR is prepared to analyze the project's remaining, potentially significant adverse environmental effects. Staff Analysis: The comments of the law firm of J. William Yeates are appreciated. The comments of the appellants are responded to elsewhere in this document, and in the May 25, 2004 staff report. VII. CONCLUSION In view of the foregoing review, staff continues to find that the proposed Mitigated Negative Declaration determination is appropriate. No substantial evidence has been provided that the project would result in a significant impact. Staff also concludes that the proposed 40- unit project as approved by the County Planning Commission is consistent with the General Plan. Accordingly, the Board adopted the Mitigated Negative Declaration determination, and denied the appeal. July 13,2004 Board of Supervisors Bearing on Appeal of Request for 40-Lot Subdivision,File SD018533 Page 40 VIII. STATE LAW (Time Requirements to Act on Appeal Following Closure of Appeal Hearin The Board of Supervisors should exercise caution before closing the hearing on this appeal. State law regulates the processing of subdivision appeals. Once the Board closes the hearing, it may have only 10 calendar days in which to declare its findings based upon the testimony and documents produced before it or before the Planning Commission. The Board may sustain, modify, reject, or overrule any recommendations or rulings of the Planning Commission and may make any findings which are not inconsistent with the provisions of the Subdivision Map Act or Subdivision Ordinance. If the Board of Supervisors fails to act upon an appeal within the time limit specified in the Subdivision Map Act, the tentative map, insofar as it complies with applicable requirements of the Subdivision Map Act and the Subdivision Ordinance, State law may require that the tentative map be deemed approved as last conditionally approved by the County Planning Commission, and that it may be the duty of the Clerk of the Board to certify or state that approval [ref. Government Code § 66452.5 (c) & (d)]. IX. ALTERNATIVE ACTION In the event that the Board is not able to find the proposed project consistent with the General Plan, the Board could consider alternatives to the project including the original staff recommendation for a reduced project (35 lots), and/or other appropriate changes necessary to allow a General Plan consistency finding. If the Board feels that the project would result in a significant environmental impact that is not proposed to be mitigated to a less-than-significant impact, then the Board could consider requiring an alternative environmental review procedure (e.g., preparation of an EIR, revised Mitigated Negative Declaration determination) prior to considering any approval of the project. ........................... ................................... .............I.......................... ........................................................................ �'NjYz } 57 1,146RE4w X ttvs t t3 inti} ���• SJ+t �f} � a SALttlA W 1YE 3�'e'`*Vti hn��J•g � JU14 A C7 to y•i �•t t7 A i�z• EL Si.{BRAN E ELEMENTARY SCHOOL rL " ° ! " ° 521 564a 99 560 � 607 � 4 3� cz ren .775 X 6 f�G m ` snr5 5 za n , 401 t"� ti� \�v• ( set 5s rco '` MARRY (��`3� �• �� �� �� $W�. ,O/'��` ley,,�, rLifi '' � �• ..\i\�, \� `ti`ti - .� sat o 41 25 _ 509 It 677 194 top 167 23 4t Figure 2 Public Works Dept. 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