Dotty E. LeMieux
Attorney at Law
496 B. St. Ste. D
San Rafael, CA 94901
June 27, 2007
Mill Valley Planning Commission
Mill Valley City Council
Director of Planning Rory Walsh
Associate Planner Tarren Schaar
Mill Valley City Hall
26 Corte Madera Avenue
Mill Valley, CA 94941
Re: Mitigated Negative Declaration for the Miller/La Goma Mixed Use Project
Dear Mill Valley Planning Staff and Members of the Mill Valley Planning Commission and City Council:
This office has been retained by a group of Sycamore Park neighbors to put on the record their concerns over the project, known as the Miller/La Goma Mixed Use Project being proposed in the Sycamore Park neighborhood.
Introduction:
The community continues to have significant concerns about the impact of the proposed high-density La Goma project — traffic, overflow parking, congestion, flooding, noise, environmental threats to the creek, hazardous waste, loss of local-serving small businesses, and pedestrian safety — especially in the context of other planned high-density developments in Mill Valley.
The cumulative impacts of these many changes to the Miller Avenue corridor and environs must be considered in the context of this project.
Many of the same concerns that were present during the review of the earlier version of this project still apply. Additionally new ones have arisen, notably the presence of heavy concentrations of lead in the soil; which were only discovered due to the diligence of local residents who insisted that further testing was necessary.
Yet, the City continues to insist that a Mitigated Negative Declaration of Environmental Impact is all the environmental review necessary. The 80 page Neg. Dec. raises more questions regarding potential environmental impacts than it answers, suggesting the need for additional voluminous studies by even more experts before any construction can begin and even then, calls for more monitoring and even more studies when potential impacts come to light. Because the IS contemplates further mitigation measures, which themselves will require further public review, a full EIR should be prepared at this stage of the project. (”…CEQA contemplates public review of mitigation measures proposed in a negative declaration to reduce potentially significant effects. (§§ 15070, subd. (b), 15071, subd. (e).) CEQA does not require mitigation of insignificant effects. By interpolation, it would appear that if the initial public review demonstrates the need for further mitigation to reduce significant effects, any new mitigation proposal should be subject to further public review.” Leonoff v. Monterey County Bd. of Supervisors (1990) 222 Cal.App.3d 1337, 1357.)
Having reviewed the Initial Study and Neg. Dec. prepared for this project, we conclude that potential significant environmental impacts make it is necessary for the City to require a full Environmental Impact Report (EIR), considering alternatives, including a lower-density project under the RS-6 zoning as a viable alternative for the properties at 5, 15 & 19 La Goma.
All that is necessary to show a full EIR must be prepared for a project is to demonstrate that significant environmental impacts may result, that the mitigation measures suggested in the Neg. Dec. do not adequately address. That is most definitely the case here.
This letter focuses on those items in the IS and Neg. Dec.[1] which are either in error or leave open questions which only a full EIR can address. The items are taken in order as they are discussed in the IS starting with the section of the IS under discussion:
I. Aesthetics
Would the project:
a) have a substantial adverse effect on a scenic vista?
At Page 5, The IS states: “The project is located in a low-lying area near downtown Mill Valley, with surrounding hillsides visible to the north and west of the Project site, including residential areas to the west and the slopes of Mount Tamalpais to the north. The view from these surrounding areas would not be adversely affected by the project because it is an infill site within a developed area.“
This only gives the perspective when looking down on the project from up on the hill. The impact on views from all surrounding homes and buildings was not even
mentioned in the study. The development would have a significant impact–it would eliminate–the hillside views from all of the adjacent homes on Sycamore. The proposed height (28.5 ft) is up to 12.5 feet taller than adjacent buildings. The height of this development is completely out of character and inconsistent with the surrounding neighborhood. “New development should have a natural transition to the surrounding neighborhood.” (Mill Valley General Plan)
d) Create a new source of substantial light or glare that would adversely affect day or nighttime views in the area?
The IS, at Page 7, states: “The Project would therefore not result in substantial light or glare that would adversely affect night or daytime views” but provides no substantial justification for this statement. A multi-unit project such as this is likely to introduce significant additional lighting into a residential neighborhood. This effect needs to be studied and mitigated in a full EIR.
III. Air Quality
Would the project:
b) Violate any air quality standard or contribute substantially to an existing or projected air quality violation?
and
c) Result in a cumulatively considerable net increase of any criteria pollutant…?
The IS, at Page 10, finds a less than significant impact to the air quality–stating that the development will generate fewer vehicle trips than existing use. The consultant makes this conclusion based on academic formulas not on knowledge of the actual use of the existing site over the past two years:
“The project is estimated to generate approximately 327 vehicle trips per day… Existing uses on the project site, based on square footage of commercial space and the two residential units, would be expected to generate up to 355 daily vehicle trips.”
The IS fails to take into consideration the fact that over half of the 8,000 sq foot commercial building on Miller has been vacant for two years. (Observations of local residents.) The IS also states that the two single-family homes on the La Goma parcel generate 19 trips per day. There has only been one person with one car living on the La Goma parcels for the past two years. There is no site specific evidence justifying the figures for the 355 car trips per day used as a baseline in the IS.
These estimates and conclusions are meaningless because they are not basing the analysis on the actual existing usage over the past two years. They also neglect to take into account the unique position, constant congestion and double parking on this stretch of La Goma lined with multiple auto repair businesses, the shipping business, cut-through traffic, and Egger plaza.
The demolition and new construction of the commercial structure and addition of 17 dwelling units to a site currently containing a partially unoccupied commercial structure and two single family homes, only one of which has been occupied in recent times, constitutes a substantial change such that the additional traffic generated may be substantial and warrants a full EIR to evaluate that impact:
“While the addition of any small building to a fully developed downtown commercial area is likely to cause minor adverse changes in the amount and flow of traffic and in parking patterns in the area, such effects cannot be deemed ’significant’ without a showing of some feature of the project that distinguishes it from any other small, run-of-the-mill commercial building or use” (Fairbank v. City of Mill Valley (1999) 75 Cal.App.4th 1243, 1260.)
And
“if a project concerns “a commercial area of such character that a few dozen additional cars (or a few hundred depending on the economy) would be expected to be a logical part of that local environmental picture, it could then be said that the [project] would have no significant effect on the environment of that particular area” (City of Orange v. Valenti (1974) 37 Cal.App.3d 240, 249.)
In this case, the changes are dramatic and substantial do contain “some feature of the project that distinguishes it from any other small, run-of-the-mill commercial building or use” such that a full EIR is warranted.
This is especially so, in light of the cumulative impacts on traffic, resulting from the concurrently planned projects proposed in the Miller Avenue Precise Plan (MAPP), now under consideration the City. By utilizing the more cursory Neg. Dec. procedure, the City attempts to bypass a cumulative impact analysis.
Since the MAPP, when fully realized, will likely result in many more automobile trips along the Miller Avenue corridor, those impacts must be taken into consideration in the analysis of this project. (CEQA Guidelines section 15130)
d. Expose sensitive receptors to substantial pollutant concentrations?
The IS ( at page 12) finds this potentially significant unless mitigated:
“The physical demolition of the existing structures has a high potential for creating air pollutants. In addition to the dust created during demolition, substantial dust emission could be created as debris is loaded into trucks for disposal…The Project would require minor grading and earthmoving, which generate the greatest amount of emissions.”
“The potentially significant effect of construction activities would be increased due to dust-fall and locally elevated levels of PM10 downwind of construction activity, which has the potential for creating a “nuisance” at nearby properties.”
The consultant calls this a “nuisance” yet their analysis also says the soil is contaminated with hazardous waste as discussed below. An environmentally sensitive creek and several homes are downwind of the site, and this is an extremely windy area when the fog is coming in.
Additionally several schools, including a pre-school are located within a close proximity to this site. See discussion under Hazardous Materials section below.
IV. Biological Resources:
The IS finds that, unless mitigated, the project will have a substantial impact on sensitive biological resources. The points below outline some of those findings. Yet it concludes proposed mitigations will be sufficient to remediate potential damage in the following sections:
Would the project:
a) Have a substantial adverse effect, either directly or through habitat modifications, on any species identified as candidate, sensitive, or special status species in local or regional plans, policies, regulations, or by the California Department of Fish and Game or U.S. Fish and Wildlife Service?
The creek which borders the property is the home for protected species, most particularly the Central California Coast (CCC) steelhead (Oncorhynchus mykiss) listed as threatened under the Federal Endangered Species Act (ESA), but possibly CCC coho salmon (Oncorhynchus kisutch), the red-legged frog (Rana aurora draytonii) and freshwater shrimp (Syncaris pacifica).
Would the project:
b) Have a substantial adverse effect on any 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?
The IS finds less than significant impact for this item. For similar reasons as those discussed above, the riparian community may be adversely affected by any creek stabilization, dewatering, or diversion discussed as mitigations for item a), and hence, must be addressed in a full EIR.
Would the project:
c) Have a substantial adverse impact on federally protected wetlands as defined in Section 404 of the Clean Water Act (including but not limited to: marsh, vernal pool, coastal, etc.) through direct removal, filling, hydrological interruption, or other means?
In the first IS this consultant prepared in 2006, they said there would be “no impact.” Now they admit there may be a “potentially significant” impact. Did something change in the site, or did the consultant fail to analyze this last time around? The lengthy discussion at pages 16-18 of the IS suggests the need for further study, review, mitigations, permits from other State and Federal agencies, in order to ensure that Federally protected wetlands are not adversely impact.
The IS (at page 16) recommends:
“Because the stabilization of the creek bank would require activity within the creek channel, Phase 2 would require consultation with the Corps, pursuant to Section 404 of the Clean Water Act. Phase 2 would also require formal consultation with NOAA Fisheries and USFWS, pursuant to Section 7 of the Endangered Species Act (ESA), since the Creek provides potential habitat for the CCC steelhead. The Regional Water Quality Control Board (RWQCB) will require a Section 404 permit to be in place before it issues a Section 401 permit.”
And at page 17:
“To avoid these adverse effects, the NOAA Fisheries may require that the creek be diverted, prior to the start of creek activities. Diversion of the creek involves placing a pipe along the La Goma section of the creek to protect it from sedimentation during construction. Prior to diverting the creek, the agencies would require that any sensitive species, including CCC steelhead, be collected and relocated.”
Although discussion of the mitigation measures and Best Management Practices has been expanded from that in the original Neg. Dec. issued for the earlier version of this project, this discussion leads to the inescapable conclusion that such measures themselves will be subject to further public review and comment; this alone triggers the need for a full EIR, as provided in the Guidelines and cases cited above.
Would the project:
d) Interfere substantially with the movement of any native resident or migratory fish or wildlife species or with an established resident or migratory wildlife corridors, or impede the use of native wildlife nursery sites?
The IS at page 16 finds a less than significant impact once the mitigation measures are implemented. For the same reasons discussed above, this item too requires the kind of complete analysis that can only be provided in a full EIR:
“During the summer months, the same section of creek is characterized by a narrow and shallow creek (1-2 feet wide and less than a foot deep or, in places, probably only a few inches deep.”
However, according to neighbors who have lived in the area for more than ten years there is no section of the creek that borders this project that is 1-2 feet wide and a few inches deep in the summer. (Conversations with neighbors) “Statements of area residents who are not environmental experts may qualify as substantial evidence if they are based on relevant personal observations or involve ‘nontechnical’ issues.” (Ocean View Estates Homeowners Assn., Inc. v. Montecito Water Dist. (2004) 116 Cal.App.4th 396, 402.)
Thus the observations of the residents on the characteristics of the creek, as well as their equally well documented observations on the traffic and parking patterns in the project area as it has existed over the years and exists today are entitled to be given great weight.
In addition to the open ended nature of future activities along the creek bed, the section on tree removal and the effect on raptors or migratory birds is cursory and calls only for removing trees prior to nesting or “flagging off” an area around trees with nests:
At page 19 - “Mitigation Measure IV-2: To avoid any nesting season conflict during construction, trees shall be removed before the start of the nesting season (February 15). If tree removal is slated for any portion of the nesting season (February 15 to April 15) a biologist shall first conduct a nest survey of the area 30 days in advance of start of work. If no nesting is found to be occurring, work can proceed as planned. If nest activity is found, the biologist shall flag off a suitable non-disturbance buffer area that will remain until the young have fledged. Meanwhile, work outside the buffer area can proceed as planned.”
This is a wholly inadequate mitigation. No evidence is presented as to how to determine the exact dates of nesting; no parameters are provided for a proper “flagging off” area, nor what that consists of; one might assume placing construction tape around an area, without consideration for the churned up hazardous soils, or blowing of demolition or construction materials into the nests of newly hatched chicks. In fact, it is clear future studies on the effect of this project on raptors and migratory birds, on salmonids and other aquatic animals and on the sedimentation and effect of creek diversion itself will be necessary to determine the true environmental impacts of this project and the appropriate mitigation measures necessary to avoid the impacts. This reliance on future studies runs afoul of the prohibitions contained in the seminal case of Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296 [2], and leaves to speculation whether or not the affected species would actually be protected at all.
VII. Hazards and Hazardous Materials
Would the project:
b) Create a significant hazard to the public or the environment through reasonably foreseeable upset and accident conditions involving the release of hazardous materials into the environment?
The IS finds substantial evidence of potential contamination in the soils on this site, both from its previous use as a automobile storage yard and from the newly discovered presence of high concentrations of lead from a ceramic studio on the site:
“As detailed by the Limited Investigation of Soil and Groundwater Conditions (May 18, 2005), prepared by Edd Clark & Associates, Inc., the 5 La Goma parcel was previously used as a storage yard for automobiles that were non-operational or waiting repair. Due to the nature of this previous use five excavations were performed on the site to evaluate any possible soil contamination from leaking gas, oil or other hazardous materials. According to the report, no evidence of hazardous substances was detected during the excavations. These findings are consistent with the fact that contaminated soil previously discovered on the project site was removed and replaced with clean fill soil. Although known petroleum contaminated soil was removed in 2002, given the history of the site, there is a possibility that additional petroleum-affected soils will be encountered once the buildings are demolished and grading/excavation is performed.”
The IS says that in 2002, “the shallow, near-surface soil at the Project site was discovered to be affected by lead introduced from an unknown source. 65 tons of contaminated soil were subsequently removed and disposed at a licensed landfill and replaced with clean, import fill.”
It should be noted that local residents do not recall this removal taking place. Where is the evidence that this was ever done? Only a footnote reference to EnviroNet is provided. No further evidence is offered that this removal took place, that it is as stated or that it constituted a complete clean up of the contaminated material.
Nonetheless, the potential for further contamination on site from petroleum products and/or lead on site, is itself enough to trigger the preparation of a full EIR.
It was only after public pressure to test the soil that further testing was done in August 2006 and discovered that the soil contained lead at 7 times the level considered hazardous waste. In addition, soils throughout the property contained high concentrations of lead:
(Page 36) “The samples contained total lead concentrations up to 6,800 mg/kg, above the California Total Threshold Limit Concentration (TTLC) hazardous waste threshold of 1,000 mg/kg, indicating that soils at this location could be classified as a hazardous waste for disposal (Edd Clark & Associates, 2006). The highest concentrations were from shallow soils near the former ceramics shop, though all locations, including a location in the southeast corner of the property, contained lead at or above the 140 mg/kg, higher than would be expected from naturally occurring concentrations.”
Page 37 - “Mitigation VII-2a: Creation of a Soil and Groundwater Management Plan.
“If discolored, odorous or otherwise questionable soil and/or groundwater are encountered during grading and excavation activities, the contractor shall stop work in the area and notify a qualified hazardous materials consultant as determined by the city.”
This cursory prescription for dealing with hazardous wastes that may be found on site is completely unacceptable and unscientific.
Leaving such a decision to the untrained and unqualified eyes and ears of construction crews is an open invitation for future residents to file costly lawsuits for damages against the City, the developers and contractors involved.
A thorough scientific study needs to be performed prior to any construction projects in the area where hazardous wastes were detected prior to any construction.
In fact, given the stark difference between the findings in the earlier Edd Clark & Associates study and the latest one, the only conclusion is that significant impacts to the environment, including the air quality, water quality and health of future residents may result and this finding alone requires a full EIR for this project.
Page 38 - “Mitigation Measure VII-2b: “Soils tested to contain lead levels above hazardous waste thresholds shall be removed or capped prior to construction. The Project site is known to contain lead contamination. Prior to issuance of a building permit, further investigation to determine the horizontal and vertical extent of lead in shallow soils shall be performed. Following investigation, appropriate remedial action (such as soil excavation and off-site disposal or encapsulation of the lead-affected soils) such as may be prescribed by an appropriate oversight agency (the Marin County Public Works Waste Management Division or the Regional Water Quality Control Board) shall be completed to the satisfaction of that agency.”
“The Project Applicant shall also retain a qualified professional to sample the entire site and remove all soils containing lead above the residential land use standard of 150 mg/kg. No building permit shall be issued for the Project until the lead oversight agency provides certification that measures have been implemented to remediate the site to residential health standards.
“In the event contaminated soil is not removed, but rather encapsulated under a parking lot or building foundation, the site will be subject to the RWQCB/DTSC Brownfields Program for regulatory oversight.”
These measures outlined above show that further review, testing and potentially cleanup of this site is required before any construction should be allowed. Again, additional mitigation measures will be required not addressed in this Neg. Dec.
Consequently, this Neg. Dec. runs afoul of both the long recognized Sundstrom rule as well as those noted in the introduction requiring an EIR where future mitigations themselves the subject of public review are anticipated. (§§ 15070, subd. (b), 15071, subd. (e).) “CEQA does not require mitigation of insignificant effects. By interpolation, it would appear that if the initial public review demonstrates the need for further mitigation to reduce significant effects, any new mitigation proposal should be subject to further public review.” Leonoff v. Monterey County Bd. of Supervisors (1990) 222 Cal.App.3d 1337, 1357.)
c) Emit hazardous emissions or handle hazardous or acutely hazardous materials, substances, or waste within one-quarter mile of an existing or proposed school?
The IS erroneously states at page 35 that the nearest schools are at least mile from the project site. However, the Little School preschool at 258 Miller Avenue is a scant 0.2 miles away, and three other schools, Tamalpais Preschool, Park Elementary School and Mill Valley Middle School are barely one-half mile from the site. The obvious potential for adverse environmental impacts make it imperative that a full EIR be prepared for this project.
No mitigation measures have fully taken into consideration the impacts on the sensitive receptors at these sites during and following construction.
VIII. Hydrology and Water Quality
After identifying several potentially significant environmental impacts if not mitigated, the IS at page 18 offers mitigation measures in general terms such as the requiring of standard stormwater pollution prevention plans and “for the most part” follow drainage patterns to avoid contamination of the creek. However, these standard practices couched in boilerplate language avoid the clear ramifications and need for specialized treatment necessitated by the presence of contaminated soil on site, as well as the reality of 100 year floods occurring with regularity in the subject area, ad the clearly articulated observations of residents on the true patterns of drainage and creek flow submitted to the City throughout this process.
Would the project:
a) Violate any water quality standards or waste discharge requirements?
Again, this IS and Neg. Dec. states that the project would generate minimal amounts of contaminants in the face of the lengthy discussion of the newly discovered lead contaminants in the soil. This requires further review and study at this stage of the project, not after approval.
c) Substantially alter the existing drainage patterns of the site or area including through the alteration of the course of a stream or river, in a manner which would result in substantial erosion or siltation on or off-site?
The banks of the creek, where drainage from the Project would flow, are very weak and were damaged by the December 31, 2005 flooding. The proposed stabilization poses a significant threat to the creek and its drainage, and the stabilization plan has a potentially high risk of failure - potentially making the creek banks far worse than it exists today.
d) Substantially alter the existing drainage pattern of the site or area, including through the alteration of the course of a stream or river, or substantially increase the rate or amount of surface runoff in a manner which would result flooding on-or off-site?
The IS at page 42, states: “The project is proposed to be constructed with drainage patterns which would, for the most part, follow the existing drainage pattern. Therefore, the project would not substantially alter the existing drainage patterns of the site or area…“
The phrase “for the most part” is vague and unintelligible. There is no way for the reader to understand what is meant and to what extent the drainage patterns would be changed. In fact, since the drainage from this site would necessarily be the same creek proven to be extremely volatile and sensitive with the December 31, 2005 flooding, new drainage patterns could hardly be avoided should flood disasters be anticipated. Therefore, the Project is likely to alter the existing drainage patterns, and a complete of potential impact from such alterations must be studied in a full EIR.
e) Create or contribute runoff water which would exceed the capacity of existing or planned stormwater drainage systems or provide substantial additional sources of polluted runoff?
It is just not realistic to state that building over 30,000 square feet of structural mass and impervious surfaces to this site has a “Less Than Significant” Impact. The site currently has two very small structures, maybe 2,000 square feet total. It only takes common sense to realize that the tremendous increase in ground coverage, building structures and surface area, will significantly add to the run-off and drainage system capacity. Add to this, the volatility of the creek, and gross failure of the existing drainage systems noted by residents and City officials during the flooding of December 31, 2005.
f) The response to this section of the study does not address the question of “polluted run-off” at all. In the light of the soil testing for this site discussed above, there needs to be a full evaluation of the extent of lead and other contaminants that may be expected to enter the creek. The likelihood of substantial additional sources of polluted runoff is great and cannot be ignored as it is here.
g) Place housing within a 100-year flood hazard area?
This IS at page 46 states: “Future floods as severe as those of 1939, 1945, 1955 and 1983 could potentially result in extensive damage to Mill Valley considerably in excess of past experience as a result of today’s increase value or improvements and the development of additional areas which are subject to inundation….This site will likely experience flooding from further storm events.“
The IS finds less than significant impacts following mitigation such as building three feet above flood plain and disclosing to future residents that their homes are in a flood zone. It does not discuss the impact of the cumulative effects of so much high-density building in a flood zone. Building high-density housing projects in an active flood zone without a full EIR and comprehensive plan for dealing with a demonstrated increase in the likelihood of future flooding is irresponsible, endangering property and human life.
For the same reasons enumerated above, these changes may result in significant environmental impacts, and a full EIR is required.
IX. Land Use and Planning
Would the project:
b) Conflict with any applicable land use plan, policy, or regulation of an agency with jurisdiction over the project (including, but not limited to the general plan, specific plan, local coastal program, or zoning ordinance) adopted for the purpose of avoiding or mitigating an environmental effect?
The IS once again finds less than significant impact, citing its location near downtown Mill Valley, and the findings of the MAPP for higher residential densities, and justifying this finding through reference to the planned zoning changes. These changes themselves will create a significant environmental impact such that a full EIR must be prepared before the project is commenced.
A cumulative impact study must be complete for this and all the other projects within the Miler Avenue corridor, including the full MAPP in order to asses the impacts adequately to satisfy CEQA.
b. Less than Significant Impact. The project site is currently zoned as Neighborhood Commercial, with a similar General Plan land use designation. The zoning would be changed to Neighborhood Commercial-Planned Development. This change in designation would allow the City to determine the appropriate uses for the site consistent with the General Plan. (IS at page 49.)
As it stands now, the project is in conflict with a number of the General Plan provisions, as cited with more specificity in the letter of December 1, 2005 [3] including at Section 2 - Land Use, 2.3.1 Existing Conditions and Projections, provides as follows:
“It is the City’s intent to preserve the special visual distinctiveness of this area (Sycamore/Tam Park/Central Triangle) and to ensure that new or expanded homes are limited to a scale compatible with that of other existing residences in the neighborhood.”
In summary, this project as proposed, will add a dense multi-unit development to a sensitive residential neighborhood of single-family homes. The size and scale of the development would overpower the neighborhood where the average home height is 20 feet tall. The development towers 8.5 taller than its residential neighbors and 17 feet taller than the adjacent commercial building on Miller.
This will have the effect of blocking mountain views from long term residents and depriving them of one of the amenities afforded to Mill Valley City dwellers who live in established neighborhoods close to commercial districts.
This height and bulk impacts privacy, sunlight and view issues for the neighbors and adds to the density and overcrowding of a single-family residential community. Because it lies within a “transitional” zone between the commercial corridor and a residential neighborhood, the development in this location needs to be sensitive to the adjacent established single-family residential community. It is ludicrous to suggest that a new development that towers over both the adjoining commercial and residential structures is in any way transitional.
Traffic impacts have been noted on several occasions by members of the community, as well as parking problems in the neighborhood. Replacing the two existing single-family residential units and commercial operation (storage yard for auto body shop) with a dense multi-family development and as yet undetermined commercial uses does not ensure a lessoning of traffic. In fact, more traffic is bound to be the result of this increased density. Small children, pets, bicyclists and elderly residents are at risk when excessive traffic moves into an established single-family community. The IS references two nearby parks yet fails to take into any account the increased risk of vehicular traffic to neighborhood children. Traffic delays and congestion result as commuters utilize neighborhood streets to bypass Miller, East Blithedale and Camino Alto. Adequate traffic studies are essential as part of the environmental review process.
XI. Noise
Would the project:
c) Cause a substantial permanent increase in ambient noise levels in the project vicinity above levels existing without the project?
c) Less than Significant Impact: The IS states at page 54: “residential development projects do not typically result in noise levels that are incompatible with surrounding residential and commercial uses.”
This does not take into consideration the fact that the proposed high-density structure will add a significant increase to the population, new commercial development and structures that tower up to 17 feet taller than adjacent buildings.
The time when noise levels will have the greatest impact on the residential neighborhood is in the evenings. The IS did not take this into consideration. Currently, it is so quiet that residents can clearly hear conversations two or three houses away. Adding 37 people on one lot in this quiet neighborhood will significantly increase the evening noise levels for the surrounding neighborhood.
Further environmental impact study of the noise generated by a densely inhabited structure in a quiet residential neighborhood currently composed of single-family homes is required.
a) A substantial temporary or periodic increase in ambient noise levels in project vicinity above levels existing without the project?
The IS states at page 55: “Noise levels from construction would exceed the City’s noise ordinance limit at the adjacent properties. Based on the size of the site and the proximity of residential uses it will not be possible to comply with the City’s construction noise level limits in many instances…The city can issue a special permit that allows the construction permit to exceed the noise limit.”
The IS finds this potentially significant unless mitigated. No mitigations are offered.
The plan to dewater the creek during bank improvement, potentially during the July - October timeframe, calls for a generator run pump operating 24 hours a day 7 days a week (per Jeremy Sarrow of the California Department of Fish & Game). The IS neglects to mention this, and does not indicate that a study has been done on the noise levels of a generator and pump running 24/7.
Further study must be done to provide residents with information on and mitigation for the 24/7 noise levels.
XI. Population and Housing- (Note - The IS has two XI sections )
Would the project:
a) Induce substantial population growth in an area, either directly, (for example, by proposing new homes and businesses) or indirectly (for example, through extension of roads or other infrastructure)?
The IS at page 58 finds a less than significant impact for this item:
Less than Significant Impact. “The project is an infill site located near downtown Mill Valley. According to the Association of Bay Area Government (ABAG), the current population in the Mill Valley Sphere of Influence (SOI) is 18,400, with approximately 2.24 persons per household. The SOI is comprised of the city of Mill Valley as well as outlying unincorporated areas. The current population within city limits is about 14,000.
“Assuming an average household size of 2.24, the construction of 17 new residential units would generate 38 people, 36 above the site’s existing population. Currently, the population in Mill Valley is 18,400 and ABAG projects that the total population in 2010 will be 18,700 (300 more people), which is an increase of 1.6 percent. The project’s addition of 36 new residents would represent 9.5 percent of the 300-person increase in population projected by ABAG.”
This analysis fails entirely to take into consideration cumulative impacts of projects already in the pipeline or proposed through MAPP. Without an examination of the increase in population and density caused by the totality of the new projects either approved or proposed for the Miller Avenue Corridor and the MAPP, these numbers are meaningless.
Consequently, a full EIR that takes these cumulative impacts into consideration is required.
XV. Transportation and Traffic
The analysis in the IS goes much farther than simply concluding that Transportation and Circulation will not be significantly affected by the project. The overall conclusion is that the proposed project could not even potentially cause significant affects to Transportation and Circulation.
This conclusion is simply not credible given the existing traffic flow and parking problems that exist today at the intersection and adjacent streets bordering the proposed project.
Would the project:
a) Cause an increase in traffic which is substantial in relation to the existing traffic load and capacity of the street system (i.e., result in a substantial increase in either the number of vehicle trips, the volume to capacity ratio on roads, or congestion at intersections)?
b) Exceed, either individually or cumulatively, a level of service standard established by the county congestion management agency for designated roads or highways?
a. and b. Less Than Significant Impact.
This analysis fails to take into consideration the particular sighting of this project in a transition zone and the proximity to the Sycamore single-family residential neighborhood. In that context, the traffic impacts are likely to be considerable. Many letters and eyewitness testimony have already been received by the City to show that traffic is already a problem, parking is at a premium and adding this project will further impact the problem and degrade the quality of life for existing residents.
Traffic levels are already “more than double the threshold level at which traffic engineers consider a seriously undesirable neighborhood traffic problem” (From peer review of TJKM Transportation Consultants report, Sycamore Park/Tamalpais Park Neighborhood Traffic Study, sponsored by the City in 1991)
By contrast, the traffic study and its peer review cited in the IS are based on academic scenarios, not the real on-the-street traffic flows experienced by Mill Valley residents. The La Goma site already has non-stop cut-through traffic in both directions. This is coupled with 4 auto repair shops, a shipping store, and a new fitness center which has further exacerbated traffic and parking problems. Since there is not enough available on-street parking for these businesses, cars, tow-trucks and shipping trucks are constantly double parked–resulting in backed up traffic and unsafe driving because of poor visibility. Adding 38+ people to a high-density housing complex will further snarl neighborhood traffic and endanger pedestrians, bicyclists and kids.
The IS concludes that there would be fewer car trips generated by this development than there are from existing use. Again this claim is based on academic scenarios rather than actual usage at the site.
The study maintains that the 8,000 sq. foot commercial building on Miller generates 355 trips/day. The study fails to note that over half the commercial building has been vacant for two years and thus claims that three small boutiques somehow generate 355 car trips per day. The IS also maintains that the two single-family homes on the La Goma parcel generate 19 trips per day. There has only been one person with one car living on the La Goma parcels for the past two years. In both of these cases, the IS does not accurately reflect the real conditions and level of occupancy currently at the site.
The study fails to address the traffic flow changes that will result from the new exit onto Miller. This exit will be the only means for residents and tenants of the multi-use building to exit their parking area. Most of this traffic will not be headed north into downtown Mill Valley, and will need to turn around. This will be done either by u-turn on Miller at Locust which will add to safety and congestion issues in the area. Or by cutting through Locust and adding to traffic in the Sycamore park neighborhood.
d) Substantially increase hazards to a design feature (e.g., sharp curves or dangerous intersections) or incompatible uses (e.g., farm equipment)?
d. Less Than Significant Impact. The current project includes a new exit onto Miller Ave. This exit will be the only way to access the 17 parking spaces for tenants and residents of the multi-use building.
The location of this exit will cause safety issues for pedestrians, cyclists, and traffic heading north on Miller. The IS at page 69 acknowledges “somewhat limited visibility” due to the fixed wall of the Auto repair shop bordering the southern side of the new exit. Unlike the multi-use building, the corner of the Auto repair shop will not be angled to better ensure drivers can see pedestrians and oncoming traffic. This will exacerbate existing safety issues at the La Goma / Miller intersection. This intersection, according to the W-trans June 2005 study, has a higher number of collisions than the statewide average.
The IS concludes that the exit onto La Goma will not pose safety problems citing supposed slow speeds in the area. This is not consistent with the real conditions in the area. As a cut-through route, the traffic speeds can be high. This coupled with the increased parking stress resulting in more double parking of delivery and tow trucks will further limit visibility along La Goma and create unsafe conditions for motorists, cyclists, and pedestrians.
f) Result in inadequate parking capacity?
f. Less Than Significant Impact. The project will provide 31 parking spaces (including one handicapped space). The dimensions of the parking spaces (9 feet by 18 feet) and the width of the two-way drive aisle (24 feet) will provide adequate internal circulation and access to parking spaces.”
The adequacy of parking is based upon theoretical estimates and standards that do not consider the specifics of the La Goma site.
The 8,000SF commercial building at 363 Miller is already nonconforming to the 32 spaces required by MV Municipal code (20.60.090-I.20), which requires 1 parking space per every 250SF. When this building is demolished and 4800SF of new retail space is built, the new requirement will be 19.2 parking spaces. The multi-family residential development will require 2.25 parking spaces per unit, with guest parking to be provided on site for a development over 4 units (20.60.090-I.7). This means that the residential development will require 38.25 spaces. The total number of spaces required by the commercial and residential developments “shall be the sum total of the requirements of the various uses…” (20.60.090-B) - which means that this mixed-use development should provide 57.45 spaces - 26.45 more spaces than the proposed project is providing.
Further study needs to be done to determine how this parking deficiency will affect existing and future businesses, and the quality of life for the Sycamore Park and Tamalpais Park residents.
In addition, the La Goma project is located across the street from Quality Auto Body and WonderCar Automotive and will remove the lots where they park their cars. This impact of this removal of parking is not considered by the IS. Further, two blocks of Sycamore (between Locust and Amicita) already rely on the spaces on La Goma Street for guest parking, as parking is not allowed on these narrow/busy sections of Sycamore.
A new fitness center has opened in the area which has further stressed the supply of parking spaces in the area.
Once again, this specific feature of the site is directly relevant to parking capacity, yet it receives no consideration in the IS. Therefore a complete EIR must analyze the specifics of the La Goma site in the context of current use, available parking inventory, and the unjustified parking bonus granted to 363 Miller.
General unanswered issues in the Negative Dec:
A Negative Declaration is to be used only in those instances where “there is no substantial evidence a project ‘may have a significant effect on the environment’ or the initial study identifies potential significant effects, but provides for mitigation revisions which make such effects insignificant, a public agency must adopt a negative declaration to such effect…” (Quail Botanical Gardens Foundation, Inc. v. City of Encinitas (1994) 29 Cal.App.4th, 1597 at p. 1602.)
If a “fair argument” can be made that substantial evidence exists in the record that a significant environmental impact “may” occur,” a full EIR is required. (ibid; also see No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 75.)
This letter sets out several examples in the IS which do not satisfy the factors necessary for forgoing an EIR for the more restrictive Neg. Dec. In fact, some of the most compelling reasons for conducting a full EIR are completely omitted from consideration.
These include the cumulative impacts of the project when taken together with the MAPP currently under review, and other nearby residential and commercial projects; and the failure to consider any alternatives to the project, as discussed in the attached December 1, 2005 letter; for example, considering a smaller project or examining any other locations which may be better suited to such a project.
As suggested in the December 2005 letter, a zoning change to make the site compatible with the neighboring community (RS-6) must also be considered. Failure to consider these alternatives does a disservice to the community and to the environment, and is unlikely to withstand a legal challenge on CEQA grounds.
Additionally, this project (as an individual project and seen in the context of the proposed and actual changes within the whole Miller Avenue corridor and downtown Mill Valley) has raised significant public controversy. If there is any question whether or not an EIR should be done, the many questions raised, the newly discovered hazardous waste and the potential for additional mitigation measures which will themselves require additional public review, at the very least tip this into the “marginal” category, requiring the preparation of a full EIR:
“Furthermore, the CEQA guidelines provide that “[i]n marginal cases where it is not clear whether there is substantial evidence that a project may have a significant effect on the environment” the existence of a “serious public controversy over the environmental effects of a project” shall tip the balance toward full environmental review. (Regs., § 15064, subd. (h)(1).)” (Friends of the Old Trees v. Department of Forestry & Fire Protection (1997) 52 Cal.App.4th 1383, 1402-1403.)
In conclusion, for the reasons discussed herein and in the original December 2005 letter, only through the preparation of a full Environmental Impact Report that thoroughly studies and allows public comment on the issues discussed herein, including an alternative for RS-6 neighborhood zoning, will the applicant be able to adequately address all of these issues to the satisfaction of City Planners, sister agencies and the citizens of Mill Valley.
Thank you very much for your consideration of these issues.
Sincerely,
Dotty E. LeMieux
Cc: Clients
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