Committee for Green Foothills says "No, NO, a thousand times NO!!!" to Proposition 23

This is just a quick note that the Committee for Green Foothills' Board of Directors voted to oppose Proposition 23, and out-of-state funded proposition that would gut our efforts to fight climate change.  We'll have more about this problem in the near future, but wanted to make a note of it as soon as possible.

-Brian Schmidt

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.

2. 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 20^th, 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 http://sanjose.granicus.com/MediaPlayer.php?view_id=35&clip_id=4460 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.

Conclusion

            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.

Sincerely,

Shani Kleinhaus                                                            Brian Schmidt

Santa Clara Valley Audubon Society                             Committee for Green Foothills

References

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.

It's nearly official - Peninsula waterways to be considered "impaired" for trash

We've been concerned about trash issues in our local creeks for a long time, and it's come to pass:

More than 20 Bay Area creeks have joined a statewide list of polluted waterways due to major trash problems, but the distinction is unlikely to speed up the cleanup process, according to environmental groups.

The list, adopted by the State Water Resources Control Board last week in Sacramento, makes trash a factor for the first time in determining whether a creek or other water body is considered "impaired" under the federal Clean Water Act.....

In the Bay Area, 24 urban creeks and two portions of San Francisco Bay are officially labeled as trashed. Of those, three are in San Mateo County and seven are in Santa Clara County. The U.S. Environmental Protection Agency still needs to approve the listings, which could take several months.

Trash is difficult to regulate. Stormwater moves litter into creeks from sidewalks, parking lots and open trash bins. The listing has no regulatory power and doesn't impose a limit on how much trash can be allowed to enter the Bay, according to Bruce Wolfe, executive officer of the San Francisco Bay Regional Water Quality Control Board.

....

In every case, however, the fact that a pollutant is carried by stormwater makes it difficult to pin the problem on a specific source.

....

Many polluters are subject to limits on what they can release into the Bay, but experts say stormwater is the last frontier.

....

The State Water Resources Control Board has identified seven Santa Clara County creeks as "impaired" under the Clean Water Act because of chronic trash problems:

Matadero Creek

Permanente Creek

Stevens Creek

Saratoga Creek

San Tomas Aquinas Creek

Guadalupe River

Coyote Creek

SAN MATEO COUNTY

Colma Creek

San Mateo Creek

San Francisquito Creek

The relation to trash, stormwater, and inappropriate development is significant, and something we've followed for years.  We'll continue to follow this development as something that will bring attention to a problem that we'd like to see addressed.

-Brian Schmidt

"Monster mansion" escaping into the wild

Recently I heard the term "monster mansion" used on local radio to describe inappropriately-huge structures that purport to be single-family homes in the hillsides.  I was very glad to hear it, because we at Committee for Green Foothills came up with the term several years ago.  Others may have thought of it as well, but we've used it as a term that accurately distinguishes those buildings from single family residences.  Above some size, a structure (or more usually, a complex of structures) is not the single family residence that's zoned in the hillside.  Given the direct habitat destruction and indirect impacts from constant stream of staff servicing these structures on a permanent basis, monster mansions cause significant problems in the hillsides and should be limited to a maximum size.

So we're glad that the term is starting to come into common use.

-Brian Schmidt

Save California's State Rock: CGF opposes SB 624

(We sent the following email and attached letter to our local state senators and assemblymembers, opposing SB 624 which would remove serpentine as California's state rock.  -Brian)


Dear Bay Area State Assemblymembers:

Please see the attached email regarding Committee for Green Foothills joining many other groups in opposition to SB 624 (Romero), which would remove serpentine as California's official state rock.  For the reasons stated in the letter, we oppose this well-intentioned but misguided effort to highlight health problems with asbestos, and encourage the bill sponsors to find alternative approaches that do not harm the public understanding of our environment and the crucial role played by serpentine and serpentine-soil biological habitats.

The letter is copied below and in an attachment.  Please contact me with any questions.

Sincerely,
Brian Schmidt

August 09, 2010

Please vote NO on SB 624, and protect California's official state rock

Dear Senators representing Santa Clara and San Mateo Counties:

The Committee for Green Foothills urges you to oppose SB 624 (Romero), a bill that would remove serpentine as California's official state rock.  Serpentine symbolizes much that is unique and beautiful about California, and more concretely forms the basis of serpentine soil habitats, one of the last remaining strongholds of plant and animal biodiversity.

SB 624 is a misguided attempt to highlight problems with asbestos, while in fact serpentine presents no danger when left alone in its unprocessed, natural form (it contains a predecessor mineral that could be processed into industrial asbestos).  Because the soil derived from serpentine bedrock is substantially different from typical soils, California native plant communities, adapted to the soil, thrive there where they have been extinguished in most areas by non-native invasive species.  California's habitats survive due to California's state rock, and that fact should be celebrated, not erased.  Fortunately for us in Santa Clara and San Mateo Counties, we have a number of areas with serpentine rock and serpentine habitats.

We have no objection to attempts to highlight problems with asbestos, but those attempts should not have negative effects on California.  However well-intentioned, this effort would harm the public understanding of our environment, so for these reasons we ask you to oppose SB 624.

Please contact us if you have any questions.

Sincerely,

Brian A. Schmidt
Legislative Advocate, Santa Clara County

On the passing of Bill Lane

Sunset Magazine publisher, philanthropist, and great friend of Committee for Green Foothills, Bill Lane died on Saturday at the age of 90.

We will write more about Bill but wanted to send out our best wishes to his family and friends.  He did a great deal in his long life to protect the legacy of the West, actions that will continue to have benefits for generations to come.  He had done much to support Committee for Green Foothills and our work over the years.  That legacy will also live on - just this summer we have had our first intern come work with us, working together with the Bill Lane Center for the American West.  Bill will be missed, and always appreciated.

Information about him is at the Palo Alto Online, and the Mercury News.  A celebration of his 90th birthday is at  The Almanac.

-Brian Schmidt

Committee for Green Foothills' comments on Stanford Medical Center DEIR

(We submitted the comments below on the draft environmental review of the Stanford Medical Center. The letter references a previous letter that CGF wrote in 2007, which can be found here.  -Brian)

July 27, 2010

Steven Turner

Department of Planning and Community Environment

Re:  Stanford University Medical Center Facilities Renewal and Replacement Draft Environmental Impact Report, SCH #2007082130

Dear Steven,

The Committee for Green Foothills ("Committee") submits the following comments on the Stanford University Medical Center Draft Environmental Impact Report ("SUMC DEIR", or "DEIR").

General Comments:

Length of review period.  We are aware of complaints that the review period for this project is taking too long and is too close to the statutory deadline for seismic upgrades, and therefore further review should be truncated, no new mitigations should be requested, and Stanford's project should be approved without modifications.  These objections fail to account for two reasons that are related to Stanford's own actions. 

First, Stanford began the process much later than other hospital systems like the Santa Clara Valley Medical Center.  This strategy by Stanford, of beginning a process late and then claiming their proposal needs to be approved as is because there's no time to change it, is an oft-used procedure.  Stanford used the identical strategy for obtaining approval of its Sustainable Development Study from Santa Clara County, without incorporating any changes suggested by Palo Alto.  Giving into this strategy is self-defeating, so neither the City nor the County should let Stanford's delay function as a reason for giving in to its demands.

Second, the review was delayed for a period when Stanford was given unannounced access to preliminary versions of the DEIR.  This access contravenes a statement by the City several years earlier (which was the last that we had heard from the City) that the City would not share preliminary versions of DEIRs with applicants, a practice that biases the review process and gives applicants inappropriate opportunities to influence what is supposed to be a neutral evaluation.  While exactly what happened is unclear, it appears Stanford took advantage of its access to argue for changes in the DEIR that delayed its publication.  Again the fault for delay lies with Stanford (although also in part with the City for its mistaken decision).  These delays do not justify short-changing environmental review.

DEIR inadequately addressed issues raised in our scoping letter.  On October 1, 2007, the Committee submitted scoping comments for the DEIR (attached).  Several of our comments, reproduced below, have not been addressed adequately:

·         Any relaxing of existing zoning standards will violate thresholds for environmental significance that the standards are meant to protect, unless compensatory environmental mitigation is required.  This is especially true given the large size of the project. For example, easing density restrictions should be compensated with open space protection.

·         Increased building height and density should be compensated with open space protection.  Decreasing views of hillsides and of natural areas are visual impacts that can be appropriately compensated for by open space protection.

·         Increase utilization of recreational resources must be analyzed in the EIR for direct, indirect, and cumulative impacts.  The City should compare the analysis used for the Stanford GUP in Santa Clara Clount’s EIR for comparison.  Increased utilization is a significant impact unless mitigated.

·         The impact on housing will be significant unless mitigated and must be analyzed.  The impact will also affect open space and traffic, because if new housing is not constructed by Stanford, it will be constructed mostly in Central Valley and elsewhere, with workers commuting in on area highways.  The City must do its own calculations about the number of jobs generated by the amount of space created.  Secondary (off-site) economic impacts must also be considered in determining the net demand for housing created by this project.

·         All newly-created housing demand should be fully mitigated with housing creation that matches the income level of housing demand generated.

·         Any analysis that concludes a “no net increase” mitigation standard for transportation is not feasible, must also determine why it is feasible for the much larger Stanford GUP expansion but not for this project.

Raising height limits, visual impacts, and the recreational impacts justify and require open space mitigation.  The Committee disagrees that simple compliance with undefined ARB recommendations for final design (DEIR at S-28) will suffice to convert an admittedly-significant impact before mitigation into one that is less-than-significant.  The loss of open views and a "big sky" means that the ability to travel around the City and surrounding area and not find it dominated by structures is reduced.  An appropriate mitigation for this impact is to secure nearby open space, and Stanford could appropriately do that by providing open space access or paying funds that could be used to secure open space access.

Similarly, increased recreational use in an area that the DEIR acknowledges has insufficient parkland (DEIR at 3.14-8) is a significant impact.  The analysis of employee use fails to include overall increased population pressure, as the people who will be brought to work at SUMC will have to live somewhere with their families, despite the City's disinterest in requiring housing as part of the project.  The failure to account for housing impacts means payment of the Community Facility Fee for non-residential development is insufficient to fully mitigate the project's impacts.  Even if these people cannot live in Palo Alto, living elsewhere means they will place pressure on recreational uses elsewhere.  That effect on recreational uses elsewhere is unanalyzed, as is the lost opportunity of Palo Alto residents to use these out-of-city facilities, thereby placing more pressure on City facilities.  Finally, the analysis fails to consider the recreational impacts to areas immediately outside of Palo Alto such as the main campus area of Stanford and in San Mateo County, where the Community Facility Fee would not provide mitigation.

The cumulative recreational impact of this project together with other recreational population pressures is significant.  Combined with visual impacts, the DEIR should require mitigation that creates recreational access to open space to mitigate the lost open sky and diminished recreational opportunities.  One possibility which was included in the Stanford GUP DEIR was the construction of two trails from the main campus into the Foothills.  The same could be done in this case, either from SUMC or from portions of the main campus easily accessible from SUMC into the Foothills.   Alignments of the C1 Trail near the north side of Stanford Foothills and outside of the golf course would be ideal, or alternative versions of the S1 Trail that run along the Stanford Foothills and eventually connect to the trail under construction could work as well.

An alternative to dedication of a trail is payment of equivalent funds into a grant program that would mitigate Stanford's recreational impacts.  Stanford has essentially agreed to do just that regarding its proposed sidewalk expansion along Alpine Road.  If San Mateo County continues to reject the sidewalk expansion as it has, then Stanford will pay the money it would have spent on that massive project into a fund run by Santa Clara County Parks Department that could mitigate the recreational impacts of the Stanford GUP.  Given that was Stanford's own agreement with the County, it should meet the same standard with the City.

Transportation issues.Given the conclusion that transportation, air quality, and climate change impacts will be significant, the DEIR should have included either of the following feasible mitigations to reduce those impacts:  1. a No-Net-New Trips standard, based on the standard used in the Stanford County GUP EIR, requiring Stanford to either avoid the creation of net new trips or install the traffic mitigations required in this DEIR; or 2. the equivalent of No-Net-New Trips that would require SUMC to match every incentive and disincentive used by Stanford in the core campus, but without requiring actual measurement of traffic.  This would not exempt Stanford from traffic mitigations required in the DEIR.  This second alternative would adjust over time, "ratcheting" up to match changes in the program used on the core campus to avoid increased trips.

In developing a No-Net-New Trips standarad, patient trips should also be taken into account, and Stanford should provide similar incentives to patients and guests to avoid increased trips.  If this is seen as infeasible, however, the no net new trips standard could exempt patients and guests and still provide partial mitigation to the significant impacts from this project.

It should be noted that one traffic mitigation, improvements to Intersection #3 (El Camino/Ravenswood) (DEIR at 3.4-61), appears to be at least partially the same listed mitigation as that found in the Stanford GUP DEIR to mitigate for that separate and different Stanford project (Stanford GUP DEIR at 4.4-98).  While the SUMC DEIR does not count the improvement of Intersection #3 towards the post-mitigation conclusion (DEIR at 3.4-65), it does count it here as potential mitigation for this project, and that could be double-counting of a mitigation that will not be effective because it could be "used up" for another Stanford project.  It would be disturbing and inadequate if this same intersection keeps getting listed in still more environmental reviews as potential mitigation for still more projects.  Similarly, Intersections #10, #18, and #23 are listed in both DEIRs, although they raise fewer issues as they are not considered feasible.  The failure to discuss the potential double-counting in the DEIR is disturbing.

The DEIR states "The three feasible intersection improvements in Table 3.4-18" were combined with other mitigations to assess overall impact mitigation.  In fact, only two feasible improvements are listed in Table 3.4-18.  If the overall analysis counted on a third intersection mitigation that is now only considered "Potentially Feasible" or "Not Feasible", then the analysis exaggerates the effectiveness of the mitigation.

The impact of the SUMC expansion to traffic on Alpine Road between Juniper Serra and Highway 280 is likely to be especially severe.  For this reason as well, a No-Net-New Trips standard should be applied.

Additional comments:

The Tree Replacement Mitigation Measure BR-4.5 should emphasize the use of native trees and that provide maximum benefitis to wildlife as replacement trees for the ones that would be removed if this project is approved.

PH-1 impact analysis states the percentage of regional housing demand from the project is relatively small.  DEIR at S-85.  Given the tremendous total housing demand on this area, the cumulative is considerable and should be mitigated by the provision of on-site housing or paying into a fund for the construction of housing, especially housing that is affordable according to the type of demand generated by the new jobs at SUMC.  Mitigation Measure PH-3.1 should be mandatory and should expressly apply to the SUMC project.

Please contact me with any questions.

Sincerely,

Brian A. Schmidt

Legislative Advocate, Santa Clara County

Attachment:  Letter of October 1, 2007, from Committee for Green Foothills to City of Palo Alto

Committee for Green Foothills' scoping letter on Stanford Medical Center from October 1, 2007

(The letter below is referenced in another letter that CGF sent yesterday, so I'm posting it here.  -Brian)

October 1, 2007

Steven Turner

City of Palo Alto

Re:  Scoping comments for the Stanford Medical Center and Shopping Center Expansion EIR

Dear Steven;

The Committee for Green Foothills submits the following comments for scoping the EIR for the Stanford Medical Center and Shopping Center:

·         The purpose of the approval for this project must be defined by the City, not by the applicant.  If the purpose that the permissions the applicants seeks (such as improving medical care) can be done in a way that the applicant does not seek, that option remains within the purpose of the City.  Legally, the applicant cannot define the purpose in a way that artificially narrows the scope of the project and its alternatives.  Because the City is deciding whether to approve the agreement, it has to define the purpose.

·         The EIR must consider a “no expansion/seismic only upgrade” alternative for the Medical Center.

·         A “no increase in medical office space” alternative should be included.  Conditions should be placed defining what type of activity or organization may use “medical office space.”

·         Any relaxing of existing zoning standards will violate thresholds for environmental significance that the standards are meant to protect, unless compensatory environmental mitigation is required.  This is especially true given the large size of the project. For example, easing density restrictions should be compensated with open space protection.)

·         Increased building height and density should be compensated with open space protection.  Decreasing views of hillsides and of natural areas are visual impacts that can be appropriately compensated for by open space protection.

·         Increase utilization of recreational resources must be analyzed in the EIR for direct, indirect, and cumulative impacts.  The City should compare the analysis used for the Stanford GUP in Santa Clara Clount’s EIR for comparison.  Increased utilization is a significant impact unless mitigated.

·         The EIR process should analyze the phasing and mitigation monitoring used in the Stanford GUP EIR to avoid similar problems.  For the Stanford GUP, six years after the impacts have occurred, the promised trails have not yet been constructed.  Mitigations should not just be begun before the impacts have occurred, they should be completed, or at least a schedule established with clear stop dates.

·         The hospital opening should be in phases, with none the medical office space opening until all environmental mitigations have been complied with.  This will make mitigation monitoring and enforcement more credible if it stops use of medical office space until environmental conditions are complied with as opposed to stopping use of the hospital.

·         Any net increases in greenhouse gas emissions are cumulatively significant.

·         “Green building” standards should be required.

·         The impact on housing will be significant unless mitigated and must be analyzed.  The impact will also affect open space and traffic, because if new housing is not constructed by Stanford, it will be constructed mostly in Central Valley and elsewhere, with workers commuting in on area highways.  The City must do its own calculations about the number of jobs generated by the amount of space created.  Secondary (off-site) economic impacts must also be considered in determining the net demand for housing created by this project.

·         All newly-created housing demand should be fully mitigated with housing creation that matches the income level of housing demand generated.

·         Any analysis that concludes a “no net increase” mitigation standard for transportation is not feasible, must also determine why it is feasible for the much larger Stanford GUP expansion but not for this project.

·         Significant and unavoidable impacts must be compensated for in a comparable manner.  For example, the visual impact of Medical Center skyscraper will be unavoidable, but rather than simply accept that as the cost the community must bear, it should be compensated for with open space protection where buildings do not predominate views.

·         Eliminate Stanford’s “plateau bargaining” through the use of binding promises in the process.  For example, Stanford has made promises on where it would agree to place the S1 Trail on its property, and then after much work had been done by the County so it could accept the offer, Stanford reneged on the promises unless dramatic new concessions were added.  This problem can be stopped by spelling out in advance when and which parts of a promise are binding.

Please contact us if you have any questions.

Sincerely,

Brian A. Schmidt

Legislative Advocate, Santa Clara County

Good news from the Water District's Environmental Advisory Committee

Yesterday, the Environmental Advisory Committee of the Santa Clara Valley Water District approved five policy recommendations made by a subcommittee that I chair, all designed to improve the District's handling of erosion and the impact on streams and habitats.  Three of the recommendations were somewhat controversial as District staff felt they were too specific for the higher level policy recommendations, but in the end the Committee agreed with all five.  They'll now get passed on to the Water District Board for its final decision.

The new recommended policies are these:

Policy Objectives

4.1.3 Protect, enhance and restore the natural physical

     stability/dynamic equilibrium of streams.

4.1.4  Protect, enhance and restore thriving populations of key    

     species indicative of watershed health.

4.1.5    Protect, enhance and restore riparian and in stream and

                   tidal habitat conditions conducive to watershed health,  

including diked historical bayland wetlands and former salt ponds. 

Strategies

4.1.2.3      Develop ecologically based habitat goals and levels of

service for use in planning and implementation.” (P & C)

4.1.2.4            Develop Stream Restoration Plans in collaboration with

                  municipal governments (C) 

-Brian Schmidt

CGF opposes redesignating land to facilitate overdevelopment in South County

(We sent this letter to the Santa Clara County Planning Commission last week.  -Brian)

June 30, 2010

Santa Clara County Planning Commission

            Re:  CGF support for the County staff position on Planning Commission July 1, 2010 meeting Agenda Item 11, recommending rejection of application for formal processing

Dear Commissioners;

I regret that I may not be able to attend the Planning Commission meeting discussing the Pickett General Plan Amendment Proposal, but as we also stated in 2007, the Committee for Green Foothills continues to oppose the proposal, and the current proposal does not change any important issue that constituted adequate reason for rejecting the proposal three years ago.

The staff report describes several reasons for rejecting the application, both now and in 2007.  Related to the 2007 discussion, I would like to correct the record contained in the staff report:  it correctly states that I spoke on behalf of CGF in opposition to the project, but also states that I supported "conversion of lands to rural residential if the property is 35 percent or more surrounded by rural residential."

I am attempting to obtain the audio recording for that meeting, but at the least, the record does not describe what I intended to say.  Proposals like this one, where a minority of adjacent land is Rural Residential, should be rejected.  Proposals where even a majority of adjacent perimeter land is Rural Residential may also be inappropriate, and only where a substantial majority, such as three out of four sides, may be appropriately considered infill under some circumstances.

The applicant's proposal for what constitutes "infill" actually leads to a logical contradiction.  As can be seen on the parcel maps for the area, parcels with a large variety of sizes and shape are adjacent to one another.  If infill is only allowed where a substantial majority of adjacent perimeter is Rural Residential, then there will soon be a condition where the infill has "infilled" and no other parcels qualify for consideration.  If, on the other hand, the County uses the applicant's very different, proposed criteria of a minority of adjacent land being sufficient to justify changing designation, then the "infill" will actually expand consistently outward.  Instead of infilling holes, the applicant's rationale will lead to outward expansion, in direct contradiction to the purpose of infill.

Take the applicant's own example, where approximately one-third of their parcel number 77611001 borders Rural Residential property.  Changing this parcel's designation means that other neighboring parcels will have similar or greater percentages of perimeter shared with Rural Residential and appropriate for re-designation – parcels 77929027 (small parcel to the east), 77926003, 75619032 (already at equivalent percentage), 75619036, and 77612008.  These parcels, once re-designated, would justify changing the designation of still other parcels in an outward expansion that includes parcels 77929028, 75619031, 75619006, and 77612012, and those parcels would justify still more re-designations.  This is just in the immediate vicinity of the applicant, but their argument logically applies to any parcels anywhere in the County that border Rural Residential land.

The problem with the applicant's argument is not that it may someday take us down a "slippery slope" of accepting ever-smaller percentages for justifying re-designations.  Rather it is the applicant's own principle without any further deterioration that justifies outwardly expanding "infill".

Committee for Green Foothills has seen too many instances where past environmental mistakes have been used by developers to justify arguing for new mistakes.  We urge the Planning Commission to avoid a repeat of that process, and to recommend rejection of this application.

Please contact us with any questions.

Sincerely,

Brian A. Schmidt

Legislative Advocate, Santa Clara County

Tiger Salamanders Return to Historical Marsh Site to Breed Where Lake Lagunita Now Sits

(Another helpful guest post by CGF Intern Anthony Aerts.  I had wondered about this issue for a while.  -Brian Schmidt)

While looking through the “Creek & Watershed Map of Palo Alto & Vicinity” created by Janet M. Sowers and published by the Oakland Museum of California (2004), I came across the following information: “Historian Alan K. Brown observed that in 1857, a natural marsh occupied the depression that is now the lake.”  While Stanford’s Lake Lagunita was originally built as a livestock watering hole, it appears that a natural wetland predated this artificial lake. This fact is significant given the debate around the vulnerable California tiger salamander population that uses Lake Lag as a winter breeding ground.

Some people have stated that the salamanders are simply benefiting from a lake that Stanford created.  They therefore resent the obligation they consider imposed on Stanford, or they think Stanford hasn't received credit it deserves for its good work.  However, the existence of a natural marsh prior to the lake might suggest otherwise. In fact, the tiger salamander may merely be returning to a spot used as a breeding ground long before Stanford came into being.

Bay Area Peninsula’s Mercury Problem Continues to Attract Attention (Guest Post)

(Another guest post by CGF Intern Anthony Aerts, taking a break from his other research to return to the mercury issue.  -Brian Schmidt)

            A few weeks ago, I wrote about a Mercury News article which detailed the mercury contamination in Santa Clara County bodies of water. The article suggested that the origin of the problem might be traced back to the County’s use of mercury in its intense mining history. However, a recent SF Chronicle article discussed how levels of mercury beyond the safe consumption threshold have also been found in fish living in the Lower Crystal Springs Reservoir of San Mateo County. Crystal Springs is one of several water storage facilities, managed by the San Francisco Public Utilities Commission, used to supply drinking water to surrounding municipalities. Researchers are unsure of the source of the mercury in Lower Crystal Springs, but have suggested that atmospheric deposition carrying pollution across the ocean from China may be to blame. If this were the case, it would raise the additional need for air monitoring systems as a means for combating the mercury’s spread. As this problem continues to attract wider attention, it goes to highlight the need for a swift and dedicated approach to resolving the issue. 

Bucks and Silicon Archipelago in the Mercury News

CGF's direct and indirect connections to the high tech/silicon economy are in full display in recent editions of the Mercury News.

CGF Board President, Margaret MacNiven, got front page, above-the-fold treatment over her Buck's restaurant in Woodside:

Call it the Buck's Silicon Valley Barometer: The economy may be wobbly and the mood of the country anxious, but the Woodside cafe is humming again with deal-making breakfasts.

"There is more activity on the venture capital front. There is renewed enthusiasm," said Jamis MacNiven, who co-owns the restaurant with his wife, Margaret. "A year ago, it was about as bleak as it has ever been. People were talking about the drop in home values and joblessness as opposed to deal flows. Now the topic is back on business."

Meanwhile, the Mercury News just published our Op-Ed on the "Silicon Archipelago" as a new model to replace Silicon Valley sprawl in describing future economic growth for San Jose southwards:

Goodbye, Silicon Valley.  Hello, Silicon Archipelago.

 The low-density, land-wasting sprawl of Silicon Valley's past does not have to continue through the South Bay.  A better model can be an archipelago, a chain of urban islands emerging from an ocean of green space, all interrelated but separated.  This Silicon Archipelago model has a realistic chance of describing the future geography of our region as our high-tech economy extends southward. 

 The Silicon Archipelago will be an island chain of vibrant, prosperous, and high-tech cities growing upward and not outward, while ringed by “seas” of working farmlands, natural open space areas, and wildlife.  This future combines the best of environmental protection and technological development from San Jose, south to Morgan Hill and to Gilroy, and even to Hollister and beyond, without destroying the farmlands in between and wildlife nearby. 

 Just a few years ago, the idea of a Silicon Archipelago south of San Jose instead of endless sprawl would seem only a treehugger’s fantasy.  Times change, however, and the sprawling developments on the outskirts of San Jose have been stopped in their tracks. 

Debacles like the proposed Almaden Valley Sports Complex and the Coyote Valley Specific Plan are two examples of defeated threats. The Coyote Valley Research Park approved in 2000 wheezes onward in paper form only, with its permits nearly expired.  And two years ago, San Jose's City Council put South Almaden Valley and Mid-Coyote Valley off limits in the upcoming General Plan. 

 Then on April 20^th of this year, the City Council took a little-noticed but potentially dramatic move toward a Silicon Archipelago.  For the first time in 35 years, the Council hinted that greenfield areas, the farmlands of North Coyote Valley and the ranchlands of east Evergreen, may not be as appropriate for new development as are the many other parts of the city that desperately need redevelopment.

 After a suggestion by Committee for Green Foothills (my employer), the Council directed the General Plan revision process to consider the idea of "backloading" development in the greenfields of North Coyote and east Evergreen.  If enacted, this backloading would mean that only after redevelopment goals had been reached elsewhere (such as downtown) would the city consider proposals to siphon off development to the outskirts.  While an advisory Task Force rejected the backloading idea in a close vote, both that concept and the Silicon Archipelago model can still be used by the City Council to determine our future. 

 The wrong way forward into the future is to double the length of Silicon Valley sprawl from its current San Francisco-to-San Jose length, and extend it all the way through Gilroy.  This threat, while real, can be replaced by an alternative vision where San Jose is both the capital of Silicon Valley and the launchpoint of the Silicon Archipelago. 

 San Jose and cities to its south need not follow the philosophy of cancer, expanding ever outwards.  San Jose can instead be a model of an environmental, high-tech city that grows greener and richer within geographic limits.  This city with leopard sharks swimming in the Bay inside the northern city limits, tule elk grazing on the hills within its southern limits, and steelhead trout navigating the river that runs through it, is a city that can marry technology and nature. 

With these initial steps already taken, we're seeing the Silicon Archipelago at its birth.

Please click on the links above to read the complete versions in the Mercury News.

We've been talking about the Silicon Archipelago for years now and are very happy to see the concept get more prominence.  The next step is follow-through to make it happen.

-Brian Schmidt