I regret that a scheduling conflict prevents me from attending tonight's Planning Commission meeting, but I wish to reiterate in this letter the Committee for Green Foothills' continued opposition to the three USA proposals from Wren, Lucky Day, and Shapell. We believe these are unwise proposals that should not be considered until the City actually needs them - approvals now will just tie the hands of future Planning Commissions years down the road that will have a much better idea of what best fits the needs of the broader community.
Equally important, any approval of one or all of these projects right now would be a violation of CEQA for the reasons spelled out in the numerous, highly detailed and critical comment letters. The Shapell project in particular is in CEQA violation for similar reasons as the others, particularly climate impacts, and failed to prepare even as much as the inadequate DSEIR found with the other two projects.
We urge you to reject the projects, give a negative recommendation to the City Council, and preserve the opportunity for outward development, if the City needs it in the future, to be used only when necessary and according to a design that can be better determined at that time.
Please contact me with any questions.
October 19, 2009
Gilroy City Council
Dear Mayor Pinheiro and Councilmembers:
The Committee for Green Foothills opposes the Wren and Lucky Day USA Projects (Projects) that are to be considered at tonight's City Council meeting. The City of Gilroy cannot legally approve these projects due to violations of the California Environmental Quality Act, and we urge the Council to reject both projects due to the legal flaws and due to the projects' simply being bad for the City. (We understand the Shapell/Thomas proposal has been withdrawn, and we oppose it for identical reasons). Please note that the Committee retains all legal options to stop the projects if the City does approve them in violation of CEQA.
Climate change impacts dealt with inadequately.
As stated in previous letters and throughout the record for these Projects, the City's failure to establish a threshold of significance for climate change impacts and failure to determine whether impacts from the Projects are significant are violations of CEQA. Those violations remain unchanged in the FSEIR. In particular, the failure to acknowledge the impacts' significance means the City decision, if it approves the Projects, lacks the legally-required statement of overriding considerations and findings of infeasibility for alternatives or mitigations.
The FSEIR does contain a number of changes from the DSEIR that fail to mitigate climate change impacts or, even if they could change those impacts, constitute substantial new information that require recirculation of a revised DSEIR.
The changed Climate Change Program "mitigation" does not mitigate the Projects' impacts because neither the Projects nor subsequent development at the Projects are required to comply with the Climate Change Program. The Program as written also contains flaws that allow significant climate impacts:
• Timing. The requirement to "prepare" a Climate Action Plan within 36 months does not mean "adopt" the Plan with 36 months.
• Targets versus requirements. The Plan is to reference AB 32 levels for greenhouse gas emissions for its "targets," without saying those targets are mandatory requirements.
• Consistent versus not-to-exceed. The Plan will establish targets that are "consistent" with AB 32 but does not specify whether exceeding the targets by some percent could be consistent. The City may end up with a Plan that it might deem consistent with AB 32 while allowing excess emissions that could constitute significant impacts under CEQA.
The Greenhouse Gas Reduction Plan applicable to these Projects does not include mandatory requirements for compliance with AB 32 or any other proposed significance threshold under CEQA. Furthermore, and unlike the discussion of the Climate Change Program which said the Program "will include" the listed components, the Greenhouse Gas Reduction Plan "could include" the listed components, leaving open the possibility that any of the listed components could be excluded despite being feasible mitigations that might reduce the Projects' impacts. Eliminating all net increases in greenhouse gas emissions from the Projects is a mitigation that could have been applied here, but the failure to do so without findings of the mitigation's infeasibility violates CEQA.
Finally, the Greenhouse Gas Reduction Plan does not include any standard to eliminate climate change impacts from the Projects entirely, or even to reduce emissions by any measureable amount. While both the Climate Change Program and the Greenhouse Gas Reduction Plan are improvements over the status quo, as implemented here they do not eliminate the significant climate change impacts from the Projects.
The Committee stands by our other criticism of these Projects, and urges the City to reject them.
Please contact us if you have any questions.
Brian A. Schmidt
Legislative Advocate, Santa Clara County