Wednesday, August 25, 2010

CGF/Audubon appeal of the Brookside Estates development approval in San Jose

(CGF and Audubon filed a joint appeal below of a misguided project near Guadalupe Creek.  -Brian)

Joint Appeal by Santa Clara Valley Audubon Society and
Committee for Green Foothills
Supplement Appeal Information
August 20, 2010

The Santa Clara Valley Audubon Society (SCVAS) and Committee for Green Foothills (CGF), together representing more than 2000 residents in the City of San Jose, hereby appeal any certification of the Initial Study (IS) and Mitigated Negative Declaration (MND) for the proposed Project PDC10-005, Rezoning real property located on the west side of Guadalupe Mines Road, and file this appeal of the certification for the reasons stated below. 

I. General Comments.

As an initial matter, we note that both for our organizations and for any other appellants, the inadequate notice given for this project means the reasons for appeal cannot be limited to those stated at the hearings at the Planning Commission and City Council.  The inadequate notice is in itself a sufficient reason to set aside the certification, but it also deprived appellants of the opportunity to learn of deficiencies in the MND.  The City cannot deprive the public of the opportunity to investigate deficiencies in its MND, and then claim appellants have failed to investigate deficiencies in a timely manner.[1]

  1. Insufficient notice to our and other organizations mean the MND certification should be set aside or recirculated for additional comment.

San Jose has acknowledged that SCVAS and a total of seven unnamed environmental organizations that are on the notice list for CEQA projects in the City did not in fact receive notice.[2]  SCVAS in particular submitted preliminary comments and then asked to be notified and provided with environmental review documents as they became available.  The failure to notice SCVAS and other organizations means the process for examining the environmental review is itself inadequate.  The appropriate fix to that process is to reopen that review.

Not only has the City failed to provide notice that would allow for adequate review of the MND, it failed to respond adequately when informed of its deficiency.  The response requested by SCVAS was two weeks of additional time to respond to the CEQA documentation.  The City gave no additional time to respond to the CEQA document and instead, only postponed its hearing on the separate subject of project approval.  It is well established that the decision on the adequacy of environmental review and the decision nothing to cure the deficiency in the CEQA process by failing to provide proper notification.

The last piece of this confusion regarding notification is on the specific action taken by the City Council on August 17.  While minutes have not been published, the only motion was to defer consideration of the project until August 31, and there was no specific motion to certify the MND.  While the Mayor said the time for the appeal of the certification ends on Friday, it is not clear what, if any, decision is supposed to be appealed.

  1. Failure to provide notification to other affected agencies:

Because we were not given adequate time to review the environmental documentation, it is not entirely clear whether expert and responsible agencies were adequately notified so they could participate in the CEQA review.  For example, Santa Clara Valley Water District submitted comments on the project prior to the release of the Initial Study in July.  We are not aware if the District was notified when the Initial Study was released.  A specific failure to notify the Water District (if that is the case) after it provided preliminary comments would be comparably fatal a flaw as the failure to provide information to SCVAS.

            Beyond the specific issue of comments submitted by the Water District prior to the Initial Study, the IS itself states regarding the Valley Habitat Plan that "The Interim Project Referral Process requires the local participating agencies to notify the wildlife agencies (CDFG and USFWS) of projects that have the potential to adversely impact covered species or natural communities, or conflict with preliminary conservation objectives of the Habitat Plan."  (IS at 111, emphasis added.)  One of the preliminary conservation objectives of the Habitat Plan is a riparian buffer zone, which includes a 100' buffer on urban streams.  (See Valley Habitat Plan Administrative Draft Figure 6-4.)[3]  The overt conflict with the conservation objectives of the Habitat Plan triggers the notification requirement.  If that was not done as part of the IS/MND process (not just before), then this constitutes an independent reason why the City should find on our appeal that the current IS/MND cannot or should not be used to approve this project.

II. Specific Flaw and Problems with the IS/MND

SCVAS and CGF provide the following additional reason to set aside the IS/MND and to not approve the proposed project:

1. Additional reasons why notice was inadequate. 

The public process leading to the approval of the MND was flawed, and for no fault of our own excluded SCVAS from the environmental review process (References: email correspondence with City planners April 16 2010, letter to city planners April 20th, 2010, see attached). CEQA requires that The Lead Agency must consider the comments it receives during the review period prior to adopting a mitigated Negative Declaration. The information and comments that SCVAS provided in our correspondence with city planners were not included in the project review process, and we did not have the opportunity to provide additional valuable comments and feedback to City staff prior to certification of the IS and MND. Because of that, the project description and the information that was provided and analyzed in the IS and the MND is insufficient and inherently flawed.

2. Description of the tree community

The IS provides an inadequate description and assessment of the tree community and its value in providing habitat for wintering, foraging and breeding birds and other wildlife. The documents clearly underestimate avian species abundance and diversity at the site. The IS and MND ignore breeding populations of special status species in riparian vegetation and in the creek (yellow warbler Dendroica petechia, steelhead trout Oncorhynchus mykiss) despite the fact that SCVAS alerted the SJ planning division to the presence of these species as early as April 16th and again on April 20th, 2010. The inadequacies listed above invalidate the following:

•           The assessment that “No rare, threatened, endangered or special status species of flora or fauna are known to inhabit the site.”
•           The determination of no significant impacts to species identified as a candidate, sensitive, or special status species in local or regional plans, policies, or regulations, or by the California Department of Fish and Game or U.S. Fish and Wildlife Service.
•           Proposed mitigations for identified significant impacts on birds.

3. Compatibility with the Valley Habitat Plan

 The IS and the MND do not analyze compatibility of the project with the Santa Clara Valley HCP/NCCP riparian habitat conservation policies. The documents neglect to consider potential impacts to the federally threatened steelhead in the creek. Without adequate assessment, it is not possible to determine whether or not mitigation is required in order to provide adequate protection to riparian habitat or identify appropriate mitigations. The inadequacies listed above invalidate the following:

•           The determination of no substantial adverse effect on any aquatic, wetland, or riparian habitat or other sensitive natural community identified in local or regional plans, policies, regulations, or by the California Department of Fish and Game or U.S. Fish and Wildlife Service.

In addition to potential notice problems related to the Valley Habitat Plan, the Santa Clara Habitat Planning Agreement, of which San Jose is a signatory, is intended to insure that Interim Projects such as this one "help achieve the preliminary conservation objectives of the [Valley Habitat] Plan."  (IS at 50).  Because one of the preliminary conservation objectives of the Habitat Plan is a 100' buffer (or possibly with a smaller buffer plus mitigation funding equivalent to the lost ecological value from a full 100' buffer), the IS/MND fails to meet a substantive standard for habitat protection.

4. Impact on Recreation Resources.

The determination that the project will not have a significant impact on recreation resources is false. This determination ignores recreation value of the site for our membership. Bird watching is one of the fastest growing sports in the United States, as it allows low impact recreation to young and old. Due to the great variety of avian species onsite, many local birders go to the site. If the bird community is impacted and becomes less diverse, there would be an impact on the ability of our bird-watching community to recreate at the site. Onsite and offsite mitigation measures should be developed to address this potential impact.

The statute provides that mitigated Negative Declarations are used "when the initial study has identified potentially significant effects on the environment, but (1) revisions in the project plans or proposals made by, or agreed to by, the applicant before the proposed negative declaration and initial study are released for public review would avoid the effects or mitigate the effects to a point where clearly no significant effect on the environment would occur, and (2) there is no substantial evidence in light of the whole record before the public agency that the project, as revised, may have a significant effect on the environment" (Section 21064.5).

A mitigated Negative Declaration is based on the premise that the project will not result in a significant effect. We argue that not all potentially significant effects of the project can and will be avoided or mitigated to a level of insignificance by the MND.

Thus, the finding in section XVIII of the MND “MANDATORY FINDINGS OF SIGNIFICANCE” – “The project will not substantially reduce the habitat of a fish or wildlife species, be cumulatively considerable, or have a substantial adverse effect on human beings, therefore no additional mitigation is required” – is false.

There exists substantial evidence that potential environmental effects may occur despite the mitigation measures included in the mitigated Negative Declaration, and that it is unlikely that these impacts can be fully avoided or mitigated in subsequent revisions to the project. We believe we can fairly argue, based on substantial evidence, in light of the whole record, that this project may have significant environmental effects on special status species and on regional plans for watershed and habitat conservation. This rezoning project should not proceed without a comprehensive Environmental Impact Report.

5.  Bird Habitat and Avian Diversity

The site supports a rich community of native and non-native trees that create a rich, three-dimensional habitat for avian species.  Of special interest to SCVAS is the diversity of tree species, the presence of dozens of valley oaks and of coast live oaks as well as other native trees of great habitat value throughout the project site. In addition, tree “health diversity” is an important aspect of wildlife and especially avian habitat, with sick or dead tree limbs and dead trees providing food resources (insects) and nesting cavities.

•           The loss of known and established foraging, wintering and breeding habitat due to the loss of trees and open landscaping, change in development density, intensity and configuration, is not addressed in the IS, and not mitigated in the MND.
•           The habitat loss associated with the loss of tree age structure and “tree health diversity” due to the replacement of old trees with new, healthy trees is not addressed in the IS, and not mitigated in the MND.
•           The planting of trees in alternative site(s) or the donation of funds to Our City Forest does mitigate the impact of the loss of existing tree habitat for the avifauna at the project site.

The diversity of trees in various “health” states supports at least 82 species of birds at the proposed project site, including resident and wintering rare and declining species, and a CA Species of Special Concern (J. Pauser, Audubon Volunteer Survey, 2008 – 2010, attached). In the survey that was used to establish the background information for the project, project consultants identified a total of 12 common species, and proposed that 5 additional species may use the riparian area – a total of only 17 mostly common species.

•           SCVAS provided information to the City of San Jose that clearly indicated the great diversity of birds on site. The preparers of the IS did not contact SCVAS to follow up and request information. The physical, onsite surveys performed by consultants to the project proponents were obviously inadequate.
•           The list of sources and references reveals that the preparers of the IS did not use online bird databases and other readily available resources (such as the Breeding Bird Atlas of Santa Clara Valley) in their assessment.
•           As a result, the IS clearly underestimates the number of avian species that use the proposed project site, missed the yellow warbler as well as many other species of birds that use the site and/or nest there.
•           The value of existing breeding, wintering, and foraging habitat to a diverse community of birds is not assessed by the IS. The assertion that “while the site provides some habitat for regional wildlife populations, it is not of unique or particularly significant value to such populations” (IS, page 62) is thus false.

Therefore, for avian species, the MND does not avoid the effects or mitigate the effects to a point where clearly no significant effect remains on wintering, foraging, and nesting habitat; the MND does not avoid the effects or mitigate the effects to a point where clearly no significant incidental take of occupied nests will take place. This would be a violation of the Migratory Birds Treaty Act.

6. Special Status Bird Species and the Migratory Birds Treaty Act

The IS proposes that only three (3) special status species may potentially occur onsite as foragers, transients, or residents. Of these, only one is an avian species: white-tailed kite. The yellow warbler is not identified as a species that may potentially occur at the site, or nest there.

The Yellow Warbler, a California Species of Special Concern, is in decline in the western United States, where 95% of riparian habitats has been lost, altered, or degraded by human induced change (Ohmart 1994). It is likely that local habitat losses and nest parasitism have severely impacted the Yellow Warbler populations in Santa Clara County (Bousman 2007). Yellow warblers usually breed between April and July (inclusive) in Santa Clara County (Bousman 2007). Incubation lasts 10 to 14 days, and nestling period lasts from 8 to 12 days, and parental feeding may extend to two weeks after the young leave the nest, sometimes longer (Celada et al., 1999).

The IS states, “non-listed raptors, song birds and non-listed bat species the individuals of which are protected under State and Federal Law, may potentially occur onsite”, and stipulates that site development may result in direct mortality of individuals of the special status white-tailed kite, as well as other species of birds that are protected under the federal Migratory Bird Treaty Act.

The IS proposes that pre-construction and pre-tree removal surveys can mitigated impacts on avian species to a less-than-significant impact, and the MND stipulates that pre-construction surveys should take place no more than 14 days prior to the initiation of construction activities or tree relocation or removal between January and April (inclusive), and thirty days between May and August (inclusive).

Mr. Dave Johnston ((Environmental Scientist, CA Dept. of Fish and Game, personal communication) recommends that in cases where trees are to be removed or relocated, a nesting bird survey should take place no more than two (2) days prior to any scheduled tree work. For the duration of tree work during the nesting period, each tree scheduled to be relocated or removed must be inspected by a qualified biologist no more than two (2) days prior to action. This mitigation should ensure avoidance of incidental “take” of any bird nest that may contain eggs or nestlings. Indeed, PG&E has recently implemented this mitigation successfully for tree removal work in TJ Martin and Fontana parks in San Jose.

Since a bird can build a nest, lay eggs and start raising nestlings within the time interval of 14 days or 30 days, the mitigations proposed to protect birds during tree relocation or removal are inadequate and may result in violation of the Migratory Bird Treaty Act, including take of yellow warbler nests. Thus, impacts of tree relocation or removal remain a potentially significant impact that is inadequately addressed by the MND, and a violation of CEQA guidelines.

7. Encroachment on Habitat

In the letter of April 20th, SCVAS specifically requested an analysis of the possibility that the development of an active residential neighborhood, with pets and people in close proximity to the creek corridor, should encroach on wildlife habitat and impose potential impacts to known breeding habitat of listed species. This scoping request was ignored.
Thus, the possibility that intrusion into the known breeding habitat may pose unmitigable impacts to bird species was not adequately analyzed in the MND.  The proximity of residential development to the relatively intact riparian corridor would remain a Significant, Unavoidable Impact due to impacts from proximity to the riparian habitat, loss of native trees and vegetation, and the associated human and pet activity moved so close to the creek.  As a result, a Mitigated Negative Declaration would not be possible, and a clear violation of CEQA would occur.

8. Guadalupe Creek, steelhead, and regional conservation plans

In Santa Clara County, populations of the federally threatened steelhead inhabit San Francisquito, Stevens, Guadalupe, and Coyote Creeks, and their major tributaries. The Three Creek HCP (formerly FAHCE), administered by the Santa Clara Valley Water District, is currently being designed to protect and preserve the habitat that the steelhead need to migrate and spawn. Preliminarily, the stretch of the stream between Almaden Expressway and Masson Dam has been designated as a “cold water management zone” to protect steelhead and salmon habitat and spawning grounds. The IS ignored this designation of the section of the stream adjacent to the project site, and deems steelhead as unlikely to be present at the site. While we do not expect to find fish on land, assessment of the potential impacts of the project to steelhead during construction and after completion should be assessed.

The Mitigated Negative Declaration includes the mitigation "A creek bank setback equivalent to a 2:1 slope projection shall be established from the base of the creek bank." This mitigation contradicts the City recommended riparian setback development standard of 100 feet. It may result in potential impacts to Steelhead in the creek and to vegetation, trees and wildlife, including birds, in the riparian corridor. This lenient mitigation conflicts with other City and County plans, including the Santa Clara Valley Habitat Conservation Plan (HCP) which requires a setback of 100 – 200 ft for fish bearing streams.

The Santa Clara Valley HCP/NCCP states: “The primary threat to Central California Coast [steelhead] is urbanization, which has resulted in freshwater habitat loss and habitat degradation” and warns, “NOAA Fisheries predicts that Central California Coast Steelhead will become endangered within the foreseeable future.” It is thus necessary for the assessment to evaluate the impacts of the new residential development on the success of the HCP in preserving and enhancing steelhead habitat in Guadalupe creek, especially in the section between Almaden Expressway and Masson Dam. The assessment must include potential impacts from runoff or discharge of sediment and pollutants into the creek, altered stream flow patterns in time and space, and impacts associated with narrowing of the riparian corridor and human access. Not only should the analysis consider changes that may apply to stormwater management, but also any change in zoning that leads to a more conservative flood control requirements must be analyzed, especially since the HCPs predict changes in flow in this section of the creek: “the Santa Clara Valley Habitat Plan will contribute to the conservation and recovery of steelhead by protecting watershed functions that provide habitat for steelhead. Changes in flow releases proposed under the Three Creeks HCP (formerly FAHCE) will improve habitat conditions for steelhead within the Study Area.”

Additionally, City Staff acknowledged a problem with compatibility with the City's Riparian Protection Guidelines.  In the testimony by City staff on August 11, they pointed out that the City's Riparian Guidelines provide a minimum buffer zone of 50 feet except for urban infill, and City staff rightly agreed that this project, on the edge of large amounts of open space and rural development, is not urban infill.  (See at approximately the 3:25 mark.)  Approval of the project with buffer zones of less that 50', as contemplated here, therefore violates the City's own guidelines.  While the project applicants have misconstrued the exception process to conclude incorrectly that less than 100' buffer should be applied to this project, those exceptions do not apply to the 50' minimum.


            For the reasons stated above, CGF and SCVAS appeal any decision that the IS/MND is adequate, request that the City not approve the underlying project.

            Please contact us with any questions.


Shani Kleinhaus                                                            Brian Schmidt
Santa Clara Valley Audubon Society                             Committee for Green Foothills

Bousman, Bill. 2007. Breeding Birds Atlas of Santa Clara County, California. Santa Clara Valley Audubon Society

Celada, C., P. Lowther, N. Klein, C. Rimmer, D. Spector. 1999. Yellow Warber (Dedroica Petechia). The Birds of North America, No. 454.

Ohmart, R.D. 1994. The effects of human-induced changes on the avifauna of Western Habitats. A century of Avifaunal Change in Western North America, pp. 273-285 (J.R. Jehl and N.K. Johnson, eds.)Studies in Avian Biology, No. 15.

Pauser, J. List of birds on project site 2008-2010. Santa Clara Valley Audubon Society.

SCVAS email correspondence with San Jose City Planner Mike Enderby April 16th 2101
SCVAS letter to San Jose City Planners Mike Enderby and Leslie Xavier April 20th 2101
SCVAS email to San Jose City Council Auaust 16th, 2010

Santa Clara Valley NCCP/HCP

[1] Even persons who were adequately noticed have also been deprived of the right to learn of deficiencies that others could have found, so any appellant should be able to provide additional evidence.
[2] CGF normally receives CEQA notices from San Jose and has no record of receiving notice of this project, so CGF believes it has been deprived notice as well.
[3] As a participant in the Valley Habitat Plan, the City should already possess this document.  It is our understanding that alternatively to a 100' buffer under the Valley Habitat Plan would be a smaller buffer plus payment into a mitigation fund to make up for the equivalent ecological value of the 100' buffer, which was not done here.


  1. Habitat is so IMPORTANT! We will never get it back if we lose it now. We need space, good habitat for our creatures of the lands and seas, and lakes, and surrounds to keep it intact.

  2. My first comment dropped out of system.. but jist of it was that we need those places for the creatures and our enjoyment.