August 15, 2011
Andrew Crabtree, City of San Jose
RE: Committee for Green Foothills comment letter on the Draft Program Environmental Impact Report for Envision San Jose 2040 General Plan
The Committee for Green Foothills submits the following comments on the Draft Program Environmental Impact Report for Envision San Jose 2040 General Plan (PEIR). We again thank the City for extending the deadline for comments.
I. Feasible mitigations were omitted and must be included for Housing Imbalance, Transportation, Air Quality, Biological, and Land Use Impacts.
Impact PH -1, Impact TRANS -1, and other impacts listed below are described as significant. The mitigation we describe below will reduce that impact, although not necessarily to a level of insignificance, by delaying when it will occur and preventing unnecessary additional impacts. Feasible mitigations not discussed in the PDEIR reduce the multiple significant impacts associated with Jobs:Employed Resident ratios exceeding 1:1
The City worsens many of its environmental impacts, including the above impacts, through the proposed Jobs:Employed Residents ratio (J:ER) greater than 1:1, which, given the lack of housing in the Bay Area have the effect of causing large numbers of people to reside away from the Bay Area and commute by car. The City also acknowledges that it the J:ER ratios exceed 1:1 not so much because the City actually intends those high ratios but because it wants to maximize job opportunities that will increase the current ratio significantly below 1:1. See Committee for Green Foothills attached letter of February 22, 2010 for context. Mitigations that allow the flexibility of planning for jobs in multiple areas while preventing or delaying J:ER ratios far in excess of 1:1 should therefore be feasible and desireable.
1. Mitigation requiring that the J:ER jobs capacity of 1.3:1 can be planned but the actual J:ER ratio should not exceed 1:1. The PEIR should include a mitigation for Impact PH-1, Impact TRANS -1, Impact AQ- 1, Impact LU -6, and for Impacts BIO -1, BIO -4, and LU -7, all three of which should be considered significant for reasons discussed later in this letter, a requirement that the actual jobs to employed residents ratio to remain no higher than a 1:1 ratio. Development of jobs capacity in the City should happen in stages for different areas, and once the 1:1 ratio is reached, additional areas for additional capacity should not be readied for new jobs until the residential development level is also matched and planned to occur at approximately the same time. The City should include this mitigation and recalculate impacts on its basis.
2. Alternative mitigation to the strict limit of an actual J:ER ratio of 1:1, requiring the J:ER ratio remain no higher than 1:1 as long as housing is available. The City recognizes that a higher ratio of J:ER than 1:1 means there will be more people living outside San Jose and commuting to and from the City, increasing greenhouse gas emissions and creating significantly more traffic congestion. To partially mitigate the detrimental imbalance from jobs growth without housing for Impacts (ADD FROM LIST ABOVE), the growth of jobs should be bound to the growth of housing, such that the J/ER ratio does not exceeds 1:1 until the City completes their housing development goals, and then the jobs continue to be developed, possibly up to the ratio limit of 1.3:1. If the 1:1 ratio is exceeded before all the housing is completed, job capacity expansion should cease until an adequate number of housing units are developed to bring the ratio back down to 1:1.
The 1:1 ratio for the near future of J:ER can prevent a sudden influx of workers before housing is available in the city, which will mitigate the environmental impact of more employees living in surrounding regions and commuting than necessary. We understand that there needs to be a certain level of housing and job developments created for the region within San Jose, yet the ratio of jobs created does not need to be over 1:1 in order to have a fiscally successful city, especially not until housing goals are reached. The backloading mitigation policy is therefore both feasible and effective in preventing further environmental damage than the proposed developments are already causing.
II. Impacts from Prime Agricultural Land Loss
There are several flaws in the PEIR related to analysis of impacts on Prime Agricultural Land.
Failure to quantify the analysis for amount of acreage of prime farmland lost. CEQA is very clear that EIRs must be accurate, that they must not minimize project impacts, and that programmatic EIRs must not delay to project level review any impact analysis that can be conducted on the programmatic level. The PEIR here discusses the areas where prime farmland exists and would be developed, but fails to describe exactly how many acres would be lost. That figure is knowable;it is necessary to create an accurate EIR; the failure to include it minimizes the impact on agricultural land by omitting the large amount of lost farmland; and the figure can be derived now and need not wait for subsequent approvals. The City cannot adequately make a Finding of Overriding Circumstances if it fails to look adequately at the significant impacts that the General Plan would authorize.
Failure to use existing conditions as the baseline. Contrary to the statement at the beginning of PEIR Section 3 that existing conditions are used as the baseline for measuring impacts, the section on farmland references entitlements on existing farmland during the analysis of farmland impacts. It is unclear what this reference means because no quantification of farmland impacts is given, but appears to suggest that farmland with "entitled" development would not be considered part of the lost farmland. This fails to identify existing farmland condition as the baseline.
Describing "most" of North Coyote as entitled is insufficiently accurate. Much of North Coyote does not even have the pretense of entitlement, and any development in those areas would indisputably result from the PEIR.
Entitlement in North Coyote Valley is questionable for failure to meet Development Agreement benchmarks. Even if the PEIR could ignore the existing farmland condition on "entitled" land, the Development Agreement for the Coyote Valley Research Park has not been satisfied due to failure to meet benchmarks on job creation in Coyote Valley in the years since the DA had been signed. Furthermore, both the DA and subsequent permits are due to expire between now and the end of 2012. The PEIR should not plan for the next 30 years based on agreements that are either invalid or that have not been exercised and are nearly at the point of expiration.
Impact LU-6 listed on pages 176-179 has listed the loss of Prime Agricultural Land as significant and Section 184.108.40.206 on pages 193-194 has listed the loss of Prime Agricultural Land as significant and unavoidable. The feasible mitigation described below and not included in the PEIR will reduce that impact by offsetting the effects of development on agricultural lands and delaying when the impacts will occur.
There are approximately 957 acres of Prime Farmland in North Coyote Valley within the city limits and the Urban Service Area, with even more in the Coyote Valley Urban Reserve and in South Coyote Valley. Development of North Coyote Valley should be listed as a significant impact both for the impact on agricultural land and as a vital wildlife corridor. The City should not plan for any development in North Coyote Valley until the urban regions of the City have been built out. There is no reason to begin impacting this Prime Agriculture land when there is still viable space to develop and redevelop within the City. By backloading development in the city instead of undeveloped open space like Coyote Valley, this will mitigate the effects of increased transit to Coyote Valley as well as delay environmental impacts of development in the area.
The City should mitigate any agricultural development in other areas by establishing conservation easements or other permanent protection measures for agricultural lands in a 1:1 ratio of acres developed to acres preserved. Specifically, agriculture should be protected in the Coyote Valley Urban Reserve, as well as South and North Coyote Valley once the Urban Reserve is completely protected. CEQA is clear that temporary impacts are significant, so mitigations that delay impacts and are otherwise feasible have the effect of reducing those impacts and must be implemented.
III. Other comments on Agricultural Land and mitigation
Preservation is mitigation. In light of the California Supreme Court’s depublication of Friends of the Kangaroo Rat v. California Dept. of Corrections (2003) 111 Cal.App.4th 1400, the City should consider agricultural preservation as a feasible mitigation for the loss of agricultural land. Preservation should be at least at a one-acre-for-one-acre ratio. Preservation in Coyote Valley is preferable, but preserving farmlands in other areas of Santa Clara County should also be considered for purposes of determining feasible mitigation. Preservation of agricultural land in other parts of the state does not adequately mitigate for the loss of local farmland and contradicts other local policies for farmland mitigation.
The claim in the PEIR that the "protection of other existing farmland, such as through the use of agricultural easements or outright purchase, would not be considered mitigation under CEQA because the net result of such actions would still be a net loss of farmland acreage" (PEIR at 193) contradicts more recent CEQA caselaw cited above and other local farmland preservation policies such as by Santa Clara County LAFCO and City of Gilroy. See also Mira Mar Mobile Community v. City of Oceanside (2004) 119 Cal.App.4th 477 and Sierra Club v. County of Napa, (2004) Cal.App.LEXIS 1467.
It is inappropriate to defer to project level mitigation (PEIR at 193-194) the decision of whether agricultural mitigation should be required. The PEIR projects the loss of farmland now, so deferring mitigation decisions to a later point contravenes CEQA.
Rooftop gardens and natural landscaping should be required. Once all agricultural land in Coyote Valley incorporated into the greenbelt is protected, the City should require rooftop gardens and extensive natural landscaping on developments on agricultural lands to help mitigate the loss of agricultural land. This will offset the effects of heat islands, maintain air quality in the area, and potentially provide habitat for raptors and other native, winged fauna.
IV. Impact on Serpentine Lands
Impact BIO-2 listed on pages 470-471 has been listed as significant. The mitigation described below will ensure the impact is lessened as opposed to the previous mitigation that does not commit to any measures.
The City is relying on the completion and implementation of the Santa Clara County Habitat Conservation Plan to create preserves and enforce measures to decrease nitrogen impact on serpentine lands. Before the HCP is implemented, and in case the HCP is not implemented, the City currently says it will develop its own measures if it has the appropriate resources, then continues to say that they do not have the appropriate resources. There needs to be a tangible interim mitigation to damage done to serpentine lands created and implemented by the City and based on the proposals in the HCP. If the HCP is implemented, then the City can cease their mitigation only if the HCP is serving to at least fully mitigate the impact.
Some suggested mitigation measures include creating serpentine preserves to prevent nearby development, charging a nitrogen deposition tax on new developments in the sensitive areas, charging a fee on sewer hook-ups near the sensitive areas, and charging a gas or Vehicle Miles Traveled fee. These measures would help protect an extremely unique and fragile ecosystem from irreversible damage, and to reach that goal the City should devote as many resources as necessary. These mitigations should mandatory in the absence of an approved Habitat Plan.
V. Impact on Wetlands, Baylands, and Riparian Corridors, and on Wildlife Movement
Impact BIO -1 and BIO -4 have been listed as less than significant, but should be listed as significant.
Incorrect description of impacts on
as less than significant. Page 458 of the PEIR states: North Coyote Valley
Due to the relatively high levels of disturbance associated with already existing agricultural habitats that could be developed under the proposed General Plan, the relative abundance of suitable habitat for species such as raptors, other birds, and small mammals that use agricultural habitats both within the region and the state (e.g., when grassland availability in the vicinity in the Diablo Range and Santa Cruz Mountains is considered), impacts of development allowed by the General Plan to agricultural habitats within San José would be less than significant.
Documentation by the De Anza College Wildlife Corridor Stewardship Team that is briefly described by the PEIR but effectively ignored actually refutes this argument (see attached letter also available at http://www.sanjoseca.gov/coyotevalley/docs/Ltr_DeAnza_Wildlife_Study_04.14.08.pdf):
“The ‘heavily disturbed agricultural and developed areas on the Coyote Valley Floor’ is currently providing a wildlife corridor for species of Coyote Valley that come from both mountain ranges and ones which are already in the valley” -7
“Animals are not only moving but also foraging on the floor of Coyote Valley” -10
“Agricultural lands are of high value to wildlife that forage” -10
“One should not be surprised that such high animal use happens on the ‘heavily disturbed agricultural and developed areas on the Coyote Valley floor’. These agricultural lands provide a home for a variety of rodents, which are the main prey for several predators found on the Coyote Valley floor. We have not gone a day in Coyote Valley with out seeing several California ground squirrels.” -10
"If [The Coyote Valley Specific Plan, making the same claim of less-than-significant impacts] were to be implemented it would have a highly significant impact to this existing wildlife corridor and the regional movement of species, thus completely halting the natural movement that wildlife species have implemented themselves. This movement has enabled them to be able to exist in the last remaining large open space in the area of Santa Clara County" -11
These analyses show, as they did with the Coyote Valley Specific Plan, that significant wildlife impacts occur with development in Coyote Valley. (See also attached De Anza Wildlife Corridor Project Annual Report available at http://www.deanza.edu/es/wildlifecorrproj/CV%202008%20Annual%20Report%20Final%20V2%201_14_10.pdf ("Coyote Valley is one of two connectivity points between the Diablo Range and the Santa Cruz Mountains, the other being through the Pajaro River Basin, and is the only linkage with a direct connection between the two. If Coyote Valley is developed, the linkage will be lost and species in the Santa Cruz Mountains with large home ranges such as the mountain lion and the North American badger will be genetically isolated and local extinction may occur."))
Below are suggestions on refining policies to ensure mitigation measures are met:
- Policy ER-3.2 should be written with stricter language. Instead of calling a 100-ft setback “a standard to be achieved” it should be a required standard, unless it can be proven there is no feasible alternative. In the case where there is no feasible alternative, the farthest distance possible should be proposed as the setback and the City must review and approve the proposal, which should include measures to mitigate the project’s impact on the riparian corridor. This minimizes impacts to the riparian corridors and waterways in a more tangible way than the recommendations from San Jose’s Riparian Corridor Policy Study.
- With Policy ER-4.4, instead of “avoiding new development”, changing the language to “prohibiting new development” will guarantee the mitigation is successful. In sensitive areas such as baylands and wetlands, all detrimental development should be prohibited, especially in specific regions where endangered species are known to breed or nest. Failure to adopt stricter policies on development in these areas will cause significant, irreversible damage to San Jose and the surrounding regions’ wildlife populations.
VI. Other considerations.
Require recycled-water tolerant landscaping. To reduce impacts on water supply, the PEIR should include a mitigation that the
, City-managed landscaping, and other new landscaping be recycled-water tolerant. Community Forest
Institute a policy on no-net increase in impervious surfaces: Either as a feasible mitigation for hydrological impacts or as an independent choice by the City to avoid environmental effects, it should institute the following as a mitigation or a new policy: "encourage an overall trend toward a net decrease in impervious surface areas through project renovations with a focus on parking lots, driveways, sidewalks, and patios, and investigate a project-specific, no-net-increase in imperviousness that would allow payment into compensation funds where projects require on-site increase in impervious surfaces."
Impact LU -7 should be considered significant. The Golf Course Overlay in particular creates the opportunity for tens to hundreds of acres of lost habitat that have not been analyzed in the PEIR. The Golf Course Overlay should be eliminated (existing courses will therefore be grandfathered). All other disturbances should be limited to no more than 10% of the property's surface area. Only these changes can make this impact less than significant.
Please contact us with any questions. Again, we appreciate the opportunity to comment and deadline extension, and we expect our comments will help improve the environment for San Jose for decades to come.
Brian A. Schmidt
Legislative Advocate, Santa Clara County
Kelsey A. Grousbeck
Advocate Intern, Committee for Green Foothills