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Attachment 17Jennifer Armer From: Sent: To: Daisy Fordyce <fordyce @usc.edu> Thursda y, April 26, 2018 12 :38 PM Subject: Jennifer Armer; Rob Rennie; Steven Leonardis; Marico Sayoc; BSpector; Marcia Jensen Proposed Surrey Farms/Twin Oaks Development Dear Los Gatos Town Council, For the vast majority of my life, I have lived in the house at the end of the Longmeadow Drive cul-de -sac, r ight in front of the beautiful Su r rey Farms green hillside. All of my fondest memories have been formed at this house, and many of them were outdoors enjoying the beautiful nature that is behind it. Here are just a few of the reasons that make the hillsi de so important to me : •I wake up every morning with a view of the green hill, as I reside on the secon d floor of my house . • On weekend mornings I love to sit at our kitchen table in the su n and watch the deers on t he hillside roam with my dad who is reading the newspaper and my mom cooking breakfast. •Every family gathering, party, or just friends' coming over, has been impacted by t he view of the beautiful hillside. •During the summer we love to be outside--evenings typically spent with my dad barbecuing and my four siblings and I hanging out outside, playing on the grass, or sw imming in the pool. •Any time I would be dropped off by someone, I would tell them to "continue on to the end of the street, my house is just in front of the hill". Thi s hill ha s been an in tegral part of my growing up. It has been one of the major reasons why nature ha s become a passion of mine. While living in Lo s Angeles for college, I have an even better understanding of how endangered spaces like this have become . I firmly believe that none of my memories or the way that I grew up in my house would be even remotely similar had their been developments behind my house. As a native to Lo s Gatos, I can attest that all of the deve lopments that have been put up have made our small town much less charming. The development of the Surrey Farm lands would be insulting and detrimental to our t ra ditional neighborhood--one that values ra is ing fam ilies, pets, and a quiet home environment. Choosing to go through with these developments would be a decision based purely on financia l reasons and greed as it would not bring any positives to my neighborhood or the Town of Los Gato s as a whole . Feel free to contact me if you would wish to hear my arguments further in person. Sincerely, Da isy Fordyce (408) 334-4202 i.ATTACUMENT Jennifer Armer From: Sent: To: Subject: Dear Los Gatos Town Council, Jennie Fordyce <jennieamesfordyce@gmail.com > Thursday , April 26, 2018 2:07 PM Jennifer Armer; Rob Rennie; Steven Leonardis ; Marcia Jensen; Marice Sayoc; BSpector Su rre y Farms Development Concerns My name is Jennie Fordyce, and I am 26 years old. I grew up living at the base of the beautiful hillside at 191 Longm ea dow Dri ve, and recently moved back to live with my family while attending graduate school. I am writing you today to sp eak on my concern about the proposed development taking place on Surrey Farms . I can 't even begin to tell you how much I cherish the lovely hill behind our home. There are so many reasons why developing the land behind our beautiful neighborhood would be detrimental to our quaint, lovely town of Los Gato s. A few of those reason s are: -Lo sing the enjoyment of our wonderful, peaceful backyard , where my family and friends spend many days and nights, admiring the scenery, and the loss of our privacy. -Lo ss of the wildlife and vegetation that currently live in the preserved area of the hill. -The years of construction and all of the negative affects to the neighbors around (erosion, drainage problems, dust, exhaust, traffic, noise ) -The in surmountable amount of traffic that would have to go through our small ne ig hborhood, not to mention the building of those roads. Los Gatos already has major traffic i ss ue s and this would only make it worse. -The property is zoned as Re so urce Conservation Space, and changing that would leave little conserved sp ace left in Lo s Gatos. All of the developments that have been put up already have made our small town much less charming, adding seriously heavy traffic, making it nearly imposs ible to drive just down to Lo s Ga t os High School. The development of the Surrey Farm lands would be detrimental to our traditional neighborhood, one that values rai sing families, pets, and a quiet home environment. Cho os ing to go through with these developments would be a decision based purely on financial reaso n s as it would not bring any positives to my neighborhood or the Town of Los Gatos as a whole . I urge you to please consider the safety and prese rvation of our neighborhood before making any dec ision s. Feel free to co ntact me to further di sc uss my opinions on this matter. Thank you, Jennie Fordyce Se nt from my iPhone April 25, 2018 Town Council Town of Lo s Gatos To Whom It May Concern, I have lived with my parents at 126 Twin Oaks Drive for 14 years. Currently I am a student at Chapman University in Orange, California studying Political Science. My family has kept me aware of that is proposed to be developed on my street by Tom Dodge . Although I don't claim to have read every part of the development of the 17 acres, currently zoned Resource Conservation, for 10 homes. I have asked my father about how it would be developed and it would see m improbable that a Town Council charged with keeping the "Community Character" would allow for a General Plan Amendment, a Zoning Change, and a significant change to the natural state of an open space in the town (the removal and significant impact of the trees being the most troubling of the items). This seems like an issue that would have been stopped at the staff level, but it appears that it i s up to you elected officials to do the right thing. Thank you, Jake Steinbock 126 Twin Oaks Drive Los Gatos, CA 95032 LAW OFFICE OF DONALD B. MOONEY VIA ELECTRONIC MAIL council@loszatosca.g,ov clerk@losgatosca.gov Town Council Town of Los Gatos 417· Mace Boulevard, Soite J-334 Davis, CA · 95618 530-758-2377 dbmooney@dcn.org April 27, 2018 Community Development Department 110 E. Main Street Los Gatos, CA 95030 Re: Comments on Environmental Impact Report Su"ey Fann Estates Dear Councilmembers: This office represents _Jill Fordyce, Jon Fordyce, Bill Meleyco, Kathy Meleyco , Jon Witkin and Marsha Witkin and submits the following comments on the Environmental Impact Report on Surrey Farm Estates Project. As an initial matter, the commentors object to the proposed project on the grounds that the Environmental Impact Report ("EIR") fails to meet the legal requirements of the Calif omia Environmental Quality Act ("CEQA"), Public Resources Code, section 21000 et seq. and the CEQA Guidelines , section 15000 et seq . (Title 14 California Code of Regulations§ 15000 et seq.) As such, certification of the Final EIR would violate the CEQA 's requirements and constitute a prejudicial abuse of discretion . Many of the following comments were submitted on the Draft BIR but they were not included in the Fina] BIR and the Town did not provide a response to the comments . Additionally, many of these comments were provided to the Planning Commission. I. THE FINAL ENVIRONMENTAL IMPACT REPORT FAILS TO COMPLY WITH CEQA A. THE CALIFORNIA ENVIRONMENTAL QUALITY ACT "CEQA is a comprehensive scheme designed to provide long-term protection to the environment. [Pub. Resources Code, §21001.] In enacting CEQA, the Legislature declared its intention that all public agencies responsible for regulating activities affecting the environment give prime consideration to preventing environmental damage when carrying out their duties. [Pub. Resources Code,§ 21000(g).] CEQA is to be interpreted 'to afford the fullest possible protection to the environment within the reasonable scope of the statutory language.' [Friends of Mammoth v. Board of Supervisors (1972) 8 Cal3d 247, 259)". (Mountain Lion Foundation v . Fish & Game Los Gatos Town Council April 27, 2018 Page2 Com. (1997) 16 Cal.4th 105, 112.) ''The environmental impact report, with an its specificity and complexity, is the mechanism prescribed by CEQA to force informed decision making and to expose the decision-making process to public scrutiny. (Planning and Conservation League v. Department of Water Resources (2000) 83 CalApp.41h 892, 910; citing No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 86.) This interpretation remains the benchmark for judicial interpretation of CEQA. (Laurel Heights Improvement Association v. Regents of the University of California ("Laurel Heights /") (1988) 47 Cal3d 376, 390, quoting Bozung v. Local Agency Formation Commission (1975) 13 Cal.3d 263, 274.) As the Laurel Heights l court noted, "[i]t is, of course, too late to argue for a grudging, miserly reading of CEQA ." (Laurel Heights l , supra, 47 Cal.3d at p . 390.) The EIR is '1:he heart of CBQA" and "an environmental alarm bell whose purpose is to alert the public and its responsible officials to environmental changes before they have reached the ecological point of no return ." (Id. at p. 392.) The EIR is the "primary means" of ensuring that pub1ic agencies "take all action necessary to protect, rehabilitate , and enhance the environmental quality of the state.'' (Id., quoting Pub. Resources Code, § 2100l(a).) The BIR is also a "document of accountability,'' intended "to demonstrate to an apprehensive citizenry that the agency has, in fact, analyzed and considered the ecological implications of its actions." (I.Aurel Heights l, supra, 47 Cal3d at p. 392 (quoting No Oil, Inc., supra, 13 Cal3d at p. 86.) Thus, "[t]he BIR process protects not only the environment but also infonned self-government." (Ibid.) The central purpose of an ElR is to identify the significant environmental effects of the proposed project, and to identify ways of avoiding or minimizing those effects through the imposition of feasible mitigation measures or the selection of feasible alternatives . (Pub. Resources Code,§ 21002, 21002.l(a), 21061 .) "An BIR provides the public and responsible government agencies with detailed infonnation on the potential environmental consequences of an agency's proposed decision." (Mountain Lion Foundation v . Fish & Game Commission, supra, 16 Cal.4th at p. 113.) Thus, the primary purposes of CEQA is to infonn government decision-makers and the public about the potential significant environmental effects of proposed projects (CEQA Guidelines, § 15002(a)(l)) and to disclose to the public the reasons for approval of a project that may have significant environmental effects. (CEQA Guidelines,§ 15002(a)(4).) Infonned decision making and public participation are fundamental cornerstones of the CEQA process . (See Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553; Laurel H eights I, supra, 47 Cal.3d 376.) With this primary purpose of CEQA in mind, the California Supreme Court has stated that "[t]he environmental impact report ("BIR") is the primary means of achieving the Legislature's considered declaration that it is the policy of this State to take an action necessary to protect, rehabilitate, and enhance the environmental quality of the State ." (Sierra Club v. State Board of Forestry (1994) 7 Cal.4th 1215 , 1229 [emphasis added].) Thus, when an agency fails to comply with CBQA's informational requirements Los Gatos Town Council April 27, 2018 Page3 of CEQA, an agency has failed to proceed in 'a manner required by law. (Save Our Peninsula Committee v. Monterey County Board of Supel'Visors (2001) 87 Cal.App.4th 99, 118. If the deficiencies in an EIR "preclude[] informed decisionmaking and public participation, the goals of CEQA are thwarted and a prejudicial abuse of discretion has occurred." (Id. at p. 128.) As discussed in these comments as well as the comments submitted by the Fordyce Family and Save Surrey Farms, the EIR fails to satisfy CEQA 's legal requirements and fails as an informational document. Thus, the EIR is legally deficient. B. PROJECT DESCRIPTION FAILS TO COMPLY WITH CEQA The EIR fails to provide a legally adequate Project Description. CEQA requires that environmental review document contain an accurate description of the entire project. (See County of Inyo v . City of Los Angeles (1977) 71CalApp.3d185, 193 .) In County of Inyo, the court stated that "[a]n accurate , stable and finite project description is the sine qua non of an informative and legally sufficient EIR." (Id.) CEQA requires a complete project description to ensure that all of the project's environmental impacts are considered. (City of Santee v. County of San Diego (1989) 214Cal.App.3d 1450, 1454.) As stated by the court in County of Inyo, "[a] curtailed or distorted project description may stultify the objectives of the reporting process . Only through an accurate view of the project may affected outsiders and public decision-makers balance the proposal's benefit against its environmental cost, consider mitigation measures, assess the advantages of terminating the proposal (i.e ., the "no project" alternative) and weigh other alternatives in the baJance." (71 Ca1App3d at pp. 192-193; see also Communities/or a Better Environment v. City of Richmond (2010) 184 Cal App.4th 70, 82 [court found project description inadequate where EIR concealed, ignored, excluded, or simply failed to provide pertinent information" regarding a reasonably foreseeable consequence of the project].) A curtailed, enigmatic or unstable project description draws a red herring across the path of public input." (San Joaquin Raptor Rescue Center v. County of Merced (2007) 149 Cal App.4th 645, 656; quoting County of Inyo , supra, 71 Ca1App.3d at pp. 197-198.) An accurate project description is essential as it allows the public and the decision- makers to evaluate the project's benefits against its environmental effects. (County of Inyo v . City of Los Angeles, supra, 71 Ca1App3d at pp. 192-193.) An inaccurate project description may result in an EIR that fails to disclose impacts associated with the project. (See Santiago County Water Dist. v . County of Orange (1981) 118 Ca1App3d 818 , 829.) Moreover, an accurate project description provides for full disclosure and informed decision-making. (See Kostka & Zischke, Practice Under the California Environmental Quality Act (Cont. Ed. Bar 2013) § 12 .. 7, at p. 580.) "[O]nly through an accurate view of the project may the public and interested parties and public agencies balance the proposed project's benefits against its environmental cost, consider appropriate mitigation measures, assess the advantages of tenninating the proposal and properly weigh other Los Gatos Town Council April 27, 2018 Page4 alternatives .... " (City of Santee v. County of San Diego, supra, 214 Cal.App.3d at p. 1454.) If the description is inadequate because it fails to discuss an aspect of the project, the envjronmental analysis wm probably reflect the same mistake. (See San Joaquin Raptor!Wildlife Rescue Center v. County of Stanislaus (1994) 27 Cal.App.3d 713, 722- 723.) 1. THE PROJECT DESCRIPTION LACKS CRITICAL INFoRMATION The EIR' s Project Description fails to provide information regarding the size of the homes, the amount of impervious surface resulting from the construction of the homes, streets and landscaping. (See DEIR§ 3.4.) Without knowing the extent or amount of the impervious surface it impairs the ability to evaluate the potentially significant impacts to homes and residential areas from drainage. Nor can the public adequately evaluate whether the detention ponds and drainage facilities are adequate to avoid potentially significant environmental impacts. 2. THE PROJECT DESCRIPTION CONTAINS OVERLY NARROW PROJECT OBJECTIVES The EIR's Project Description contains overly narrow project objectives that the adequacy of the environmental review . The project description must state the objectives sought by the proposed project . (CEQA Guidelines,§ 15124(b).) The statement of objectives must include the underlying purpose of the project. (Id.) The statement of objectives is critical to the environmental review as its drives the agency's selection of alternatives for analysis and approval. (Id.; In re Bay Delta Programmatic Environmental Impact Report Coordinated Proceedings (2008) 43 Cal.41h 1143, 1164 [objectives chosen should be broad enough to permit a reasonable range of alternatives].) Thus, when an agency defines a project and its objectives too narrowly, the EIR's treatment of alternatives may also be inadequate. (See City of Santee v. County of San Diego (1989) 214 Cal.App3d 1438, 1455.) Thus, an applicant cannot artificially confine the range of available alternatives by adopting an overly narrow statement of project objectives. (Kings County Farm Bureau v. City of Hanford (1990) 221Cal.App3d69, 736; see also City of Carmel-by ~the-Sea v. U.S. Department of Transportation (1997) 123 F.3d 1142, 1155 (the project objective" necessarily dictates the range of •reasonable" alternatives and an agency cannot define its objectives in unreasonably narrow terms.").) To allow an applicant to do so would render CEQA's mandate "meaningless." (Kings County, supra, 221 Ca1App.3d at p. 737 .) The Applicant provided an overly narrow set of project objectives that are simply to develop 10 residential lost at the project site and to provide emergency access connections to adjacent roadways where feasible. (DEIR' 3 .3 .1.) The Town provides a separate list of project objectives that are not limited to the development of 10 homes , but with the development standards and Hillside Specific Plan. (DEIR,-33.2.) In preparation and evaluation of the alternatives, however, the EIR focuses on the Los Gatos Town Council April 27 , 2018 Page5 applicant's overly narrow objectives. These narrow project objectives unnecessarily limit the range of alternatives i n the EIR. A review of the EIR' s alternative section confirms this concern. The EIR only analyzes two alternatives: 1) the Two-Access Alternative (DEIR at p . 5-20); and 2) the Two Access +T wo EV A Alternative (DEIR at p . 5 -36). Thus, the two alternatives only deal with the project's circulation design and not the number of lots and/or the size of the lots. 3. THE PROJECT DESCRIPTION INAPPROPRIATELY I NCORPORATES MITIGATI ON MEASURES The EIR i ncorporates what amount to mitigation measures regarding stormwater drainage into the project description. (DEIR at p. 3-11.) The project description provides for two water quality/flow control basins to treat drainage from new impervious surfaces as well as catch basins to collect and direct surface runoff to two basins . (Id.) These constitute avoidance , minimization and/or mitigation measures designed to reduce or eliminate the impacts to flood risk and water quality. "By compressing the analysis of impacts and mitigation measures into a single issue, disregards the requirements of CEQA." (Lotus v . Department a/Transportation (2014) 223 CalApp.4 1h 645, 656, citing Pub. Resources Code,§§ 21lOO(b),21081, CEQA Guidelines,§ 15126, 15091.) In Lotus, the court held that actions such as restorative planting, removal of invasive plants , and the use of an arborist and specialized equipment were "plainly mitigation measures and not part of the project itself," resulting in the improper compression of environmental impacts and mitigation measures into a single issue in the EIR . (223 Cal.App.4 1b at p. 656 , fn. 8.) 4. CANCELLATION OF WILLIAMSON ACT CONTRACT The Project description includes the cancellation of the Williamson Act contract for the project site . (DEIR 5 3 .4.) The Legislature intended cancellation to be approved only in the most extraordinary circumstances. (See Sierra Club v. City of Hayward (1981) 28 Cal.3d. 840, 852.) Thus the Legislature intended nonrenewal as the ordinary contract termination method; no evidence appears in the record to demonstrate that compliance with the nonrenewal process would have interfered with the city 's orderly development or defeated any other purpose served by cancellation . (Id.) Substantial evidence must support the circumstances that give rise to the cancellation request. (Id.) "The Williamson Act authorizes approval of a cancellation request only if the relevant agency finds '(a) That the cancellation is not inconsistent with the purposes of (the act); and (P) (b) That cancellation is in the public interest.' (Gov't Code§ 51282.)" Section 51282 further states: "The existence of an opportunity for another use of the land involved shall not be sufficient reason for the cancellation of a contract. A potential alternative use of the land may be considered only if there is no proximate, noncontracted land suitable for the use to which it is proposed the contracted land be put." (Sierra Club v. City of Hayward, supra , 28 Cal.3d at pp. 847-848~ see also Save Panoche Valley v. San Los Gatos Town Council April 27,2018 Page6 Benito County (2013) 217 Cal App.4th 503, 516.) Cancellation is a disfavored method to remove lands from contract while nonrenewal is the preferred method. (Sierra Club v. City of Hayward, supra, 28 Cal.3d at p. 853 .) An agency may grant tentative approval for cancellation of a contract only if it makes one of the following findings: (1) the cancellation is consistent with the purposes of the Act or (2) cancellation is in the public interest. (Gov't Code,§ 51282(a).) "For purposes of paragraph (1) of subdivision (a) cancellation of a contract shall be consistent with the purposes of the Williamson Act if the council makes the following findings: (1) cancellation is for land on which a notice of nonrenewal has been served; (2) cancellation is not likely to result in the removal of adjacent lands from agricultural use; (3) cancellation is for an alternative use that is consistent with Town's General Plan; (4) cancellation will not result in discontiguous patterns of urban development; and (5) there is no proximate non-contracted land which is both available and suitable for the use to which it is proposed the contracted land be put or that development of the contract land would provide more contiguous patterns of urban development that development of the contracted land. (Gov't Code,§ 51282(b).) "As used in this subdivision 'proximate, noncontracted land' means land not restricted by contract pursuant to this chapter, which is sufficiently close to land which is so restricted that it can serve as a practical alternative for the use which is proposed for the restricted land. (/d.) As used in this subdivision 'suitable' for the proposed use means that the salient features of the proposed use can be served by land not restricted by contract pursuant to this chapter. Such nonrestricted land may be a single parcel or may be a combination of contiguous or discontiguous parcels." (Id.) (Save Panoche Valley, supra, 217 Cal App.4th at p. 516.) In the present matter, the EIR fails to identify any alternative site that would be noncontracted land in proximate location to the proposed project. Moreover, the EIR fails to identify the extraordinary circumstances that would justify cancellation of the Williamson Act contract. Nor does the EIR identify that compliance with the nonrenewaJ process would interfere with the Town's orderly development. B. ALTERNATIVFS The ElR contains a legally flawed alternative analysis as it fails to contain a reasonable range of feasible alternatives. (DEIR at pp. 22-31; see Pub. Resources Code, §§ 2100l(g); 21002.l(a); CEQA Guidelines,§ 15126.6; Citizens of Goleta Valley v Board of Supervisors, supra, 52 Cal .3d at p . 566.) 1. CEQA REQUlllES AN EIR TO CONSIDER A REASONABLE RANGE OF FEASIBLE ALTERNATIVES CEQA mandates that a lead agency adopt feasible alternatives or feasible mitigation measures that can substantially Jessen the project's significant environmental impacts. (Pub. Resources Code,§ 21002~ Guidelines,§ 15002(a)(3); Citizens of Goleta Los Gatos Town Council April 27, 2018 Page7 Valley v. Board of Supervisors , supra, 52 Cal3d at p. 566.) For that reason, "[t]he core of an EIR is the mitigation and alternatives sections." (Id. at p . 564.) "The purpose of an environmental impact report is to identify the significant effects on the environment of a project, to identify alternatives to the project, and to indicate the manner in which those significant effects can be mitigated or avoided. (Pub. Resources Code, § 21002.l(a) (emphasis added); see also Pub. Resources Code,§ 21061.) Thus, a lead agency must ensure "that all reasonable alternatives to proposed projects are thoroughly assessed ." (Wildlife Alive v. Chickering (1976) 18 Cal3d 190, 197; Pub. Resources Code,§ 2100l(g) (lead agency must "consider alternatives to proposed actions affecting the environment"); Laurel Heights I, supra, 47 Cal.3d at p. 400.) The determination of whether an alternative is feasible is made in two stages. (See Mir Mar Mobile Community v. City of Oceanside (2004) 119 Cal .App.4th 477-489-490 California Native Plant Society v . City of Santa Cruz (2009) 177 Cal.App.4th 957, 981; CEQA Guidelines,§ 15126.6(c).) The first step involves identifying a range of alternatives that will satisfy basic project objectives while reducing significant impacts. (Ibid.) Alternatives that are not "potentially feasible" are excluded at this stage as there is no point in studying alternatives that cannot be implemented. (Ibid.) In the second stage, the finaJ decision on the project, the agency eva]uates whether the alternatives are actually feasible. (California Native Plant Society , supra, 177 Cal App.4th at 981; see CEQA Guidelines,§ 1509l{a)(3).) At this point, the agency may reject as infeasible alternatives that were identified in the EIR as potentially feasible. (California Native Plant Society, supra, 177 Cal.App.4th at 981.) The EIR must "describe a range of reasonable alternatives to the project, or to the location of the project, which would feasibly attain most of the basic objectives of the project, and evaluate the comparative merits of the alternatives." (CEQA Guidelines, § 15126.6(a).) The alternatives discussion must focus on alternatives that avoid or substantially lessen any significant effects of the project. (Id.,§ 15126.6(b); Goleta Valley, supra, 52 Cal.3d at p. 566 (EIR must consider a1tematives that "offer substantial environmental advantages").) The range must be sufficient "to permit a reasonable choice of alternatives so far as environmental aspects are concerned." (San Bernardino Valley Audubon Soc'y v. County of San Bernardino (1984) 155 Cal.App.3d 738, 750; see also Sierra Club v. Contra Costa County (1992) 10 Cal.App.4th 1212, 1217-18, 1222 (EIR that only considered two alternatives for less development was not a range of reasonable alternatives).) Although no rule governs the number of alternatives that must be considered, the range is governed by the "rule of reason." (Citizens of Goleta Valley v. Board of Supervisors, supra, 52 Cal.3d at p. 576; CEQA Guidelines,§ 15126.6{a)(f).) Marin Municipal Water District v. KG Land Corp . (1991) 235 Cal.App3d 1652, 1664 ("CEQA establishes no categorical legal imperative as to the scope of alternatives to be analyzed in an EIR").) The range of alternatives, however, must be selected and discussed in a manner that allows for meaningfuJ public participation and informed decisionmak:ing. (Id.) The fact that CEQA does not require a specific number of alternatives does not excuse an agency's failure to present any feasible, less environmentally damaging options Los Gatos Town Council April 27,2018 Page 8 to a proposed project. (See Sierra Club v. Contra Costa County, supra, 10 Cal App.4th at 1217-18 , 1222 (EIR that only considered two alternatives for less development was not a range of reasonable alternatives).) In Watsonville Pilot Association v. City of Watsonsville, supra, 183 Cal App.4th at pp. 1086-1088, the court held that an EIR was legally inadequate because it failed to consider a reduced project alternative. The court rejected the City's argument that no discussion of an alternative is required if that alternative would not meet a project objective . (Id .) The court held "it is virtually a given that the alternatives to a project will not attain all of the project's objectives ." (Id . (emphasis in original).) The Court also rejected the City's argument that the EIR adequately addressed a reduced development alternative by considering the no-project alternative . (Id. at pp. 1088-1089.) The court recognized that "the core of an EIR is the mitigation and alternatives sections" and that the purpose of an EIR is to identify the significant effects of a project on the environment, to identify alternatives to the project, and to indicate the manner in which those significant effects can be mitigated o r avoided ." (Id.) 2. Tm: EIR's REJECTION OF THE REDUCED DENSITY ALTERNATIVE IS NOT SUPPORTED BY THE CEQA GUIDELINES. The EIR states that it rejected the reduced density alternative because CEQA Guideline section 15092( c) does not allow a reduction in the number of housing units as mitigation if it determines that there is another feasi ble specific mitigation available that will provide a comparable level of mitigation . (See also Pub. Resources Code, § 21159.26.) The EIR then concludes that the Reduced Density is legally infeasible as there are mitigation measures availabl e. The EIR's Reduced Density Alternative, however, only reduced the project by one building lot. The EIR did not consider or evaluate any alternative less than nine home sites . An adequate alternative analysis should have included a true reduced alternative of only five or six lots for homes. Under Public Resources Code, section 21159 .26, however, the decision that another mitigation measure or alternative will provide a comparable level of mitigation and that it is feasible can only be made at the project approval stage. Thus, the EIR cannot rely upon CEQA Guidelines section 15092(c) and Public Resources Code section 21159.26 to exclude an analysis of a reduced density alternative from an EIR. It should also be noted that the EIR's reliance on CEQA Guideline section 15092(c) is misplaced as it applies to mitigation measures, not an alternative analysis. Thus, nothing in section 15092(c) precludes the Town from evaluating a Reduced Density Alternative. Additionally, the Planning Commission discussed the feasibility of reducing the project to 6 home sites, i ncluding the removal of Jots and 6 and 7. In that discussion , the Commissioner did not determine that-reducing the density was not feasible . In fact, Commissioners raised the issue that 10 lots on the site may not comply with the Hillside Los Gatos Town Council April 27 , 2018 Page9 Development Standards and Guidelines and that the number of lots impacts privacy of the existing neighborhood. As such, a reduced density alternative is not only feasible but maybe required under the Hillside Development Standards and Guidelines, chapter Vffi. 3. THE ElR FAILED TO INCLUDE A REASONABLE RANGE OF ALTERNATIVES Contrary to CEQA 's directive, the Town fails to consider a "reasonable range" of alternatives that would reduce and avoid the Project's significant impacts . (See Pub. Resources Code,§§ 21002 and 21002(a); Guidelines§ 15126.6(b); Goleta Valley, 52 Cal3d at 566 (EIR must consider alternatives that "offer substantial environmental advantages").) Other than the required No Project Alternative (Guidelines, § 15126.6(e )), the EIR's alternative analysis contains only two alternatives, both of which have to do with access roads to the project and not the number of lots, size of lots or the location of the lots . A project proponent, however, cannot artificially confine the range of available alternatives by relying upon an overly narrow statement of project objectives . (Kings County Farm Bureau v. City of Hanford, supra, 221 Cal App3d at p. 736; see also City of Carmel-By-the-Sea v. U.S. Department of Transportation, supra, 123 F.3d at p. 1155 (the project objective "necessarily dictates the range of 'reasonable' alternatives and an agency cannot define its objectives in unreasonably narrow terms.").) To allow the project's objectives to be unreasonably narrow renders CEQA 's mandate to consider a reasonable range of potentially feasible alternatives meaningless. (Kings County, supra, 221 Ca1App.3d at p . 737 .) When an agency rejects one or more alternatives as infeasible during the scoping process does not mean that the EIR need not contain a range of alternatives to the project. (See In re Bay Delta Programmatic Environmental Impact Report Coordinated Proceedings, supra, 43 Cal.4th at p. 1164; California Native Plant Society, supra, 177 Cal App.4th at 981; Citizens of Goleta Valley v. Board of Supervisors, supra, 52 Cal.3d at p. 559 (EIR examined 4 development alternatives); Laurel Heights I, supra, 47 Cal 3d at 403 .) Failure to provide a range of potentially feasible alternatives means that the BIR fails to provide a choice to the decisionmakers . (San Bernardino Valley Audubon Soc'y v. County of San Bernardino, supra, 155 CalApp.3d at 750 (range must be sufficient to provide a reasonable choice of alternatives); California Native Plant Society v. City of Santa Cruz, supra, 177 Cal App.4th at 981 (the decisionmaking body evaluates whether the alternatives are actually feasible); CEQA Guidelines ,§ 15126.6(a) (EIR must consider a reasonable range of potentially feasible alternatives that will foster informed decisionmaking and public participation.).) The decision makers may reject as infeasible alternatives that were identified in the BIR as potentially feasible. (Mira Mar Mobile Community v. City of Oceanside, supra, 119 Ca1App.4th at489.) Los Gatos Town Council April27,2018 Page 10 The EIR's failure to consider a reduced project alternative violates CEQA's requirement to include a reasonable range of alternatives that would reduce and/or avoid the Project's significant impacts . As such, the Town needs to prepare a revised EIR that considers a reasonable range of alternatives. C. THE EIR F AB..S TO ADEQUATELY ADDRESS IMPACTS AND LACKS ADEQUATE MITI GATION MEASURES 1. LAND USE AND PLANNING The EIR recognizes that a project will result in a significant land use impact if the project conflicts with any applicable land use plan, policy or regulation of an agency with jurisdiction over the project. (DEIR at pp. 4.1-15; CEQA Guidelines, Appendix G; see also CEQA Guidelines,§ 15125(d).) An EIR must evaluate any inconsistencies with plans. (North Coast Rivers Alliance v. Marin Municipal Water District (2013) 216 CalApp.4'h 614, 632.) Moreover, an inconsistency with a plan or regulation may indicate the likelihood of environmental harm. In the present matter, the EIR contains an inadequate and incorrect discussion regarding the Project's consistency with the Town's governing land use documents. a. THE PROJECT'S INCONSISTENCY WITH THE ZONING The Project will result in a change of zoning from Resource Conservation to Hillside Residential with a Planned Unit Development Overlay. (DEIR 4.1-2 .) According to the Town: The Resource Conservation zone is intended to enhance the quality of life in the Town of Los Gatos. The RC zone provides a means to protect open space, special land forms, scenic areas, watershed, wildlife and vegetation. The RC zone also restricts access to and within designated areas, restricts the intensity of development, limits residential density, reduces fire hazards in the hillside areas, and provides for opens space in the form of parks, playgrounds, and other community facilities. The Hillside Residential zone is intended to provide for orderly. harmonious development of the foothills and mountains. The HR zone provides a means to minimize the amount of disturbance of the natural terrain and encourages excellence in design principles and engineering techniques. The HR zone also provides for a variety of dwelling types where land assembly and a unified development scheme are more appropriate. Based upon the very definition and purpose of the zoning designation, there is a potentially significant environmental impact that the EIR has not addressed. Currently, Los Gatos Town Council April 27 , 2018 Page 11 the zoning provides for the protection of open-space and the management of land for scenic areas, watershed, wildlife and vegetation. Upon being rezoned, the zoning provides for the development of property. The EIR fails to recognize this change. Moreover, the EIR fails to mitigate for the si gnificant loss of open space protected by the Resource Conservation zone. b . THE PROJECT IS I NCONSISTENT WITH THE GENERAL PLAN'S GoALS AND POLICIES GoVERNING OPEN SPACE The proposed Project is also inconsistent with the goals and policies of the Gener al Plan . The general plan is "at the top of "the hierarchy of local government law regulating land use." (DaVita v. County of Napa (1995) 9 Cal.4th 763, 773. The Supreme Court described ''the function of a general plan as a "constitution," and labeled it the "basic land use charter governing the direction of future Jand use" in the locality. (Lesher Communications , Inc . v. City of Walnut (1950) 52 Cal.3d 531, 540,DeVita , supra, 9 Cal.3d at p . 773.) Thus, land use decisions must be consistent with the general plan. (Gov't Code,§ 65860(a); Lesher Communications, Inc., supra, 9 Cal.3d at p . 541.) An action is consistent with the general plan if it furthers the objectives and policies of the general plan and does not obstruct their attainment. (Friends of Lagoon Valley v . City of Vacaville (2007) 154 CalApp.4th 807, 817.) While a court accords deference to an agency's interpretation of its general plan and various elements, an abuse of discretion is established if the agency has not proceeded in a manner required by Jaw, its decision is not supported by findings, or the findings are not supported by substantial evidence. (See Code Civ. Proc.,§ 10945; Pfeiffer v. City of Sunnyvale City Counc il (2011) 200 Ca1App.41h 1552, 1563.) An action, however, must be consistent with the very specific and mandatory policies of the general plan . (Endangered Habitats league, Inc . v. County of Orange (2005) 131CaJApp.4lh777, 785-786, 789.; Families Unafraid to Uphold Rural El Dorado v . Board of Supervisors (1998) 62 Cal App.4th 1332, 1342.) The General Plan's Open Space Element provides: The Town's hillside areas are unique and add to the quality of life of Town residents and visitors . While much of the Town is considered built out, opportunities to develop i n the hillside areas remain. The Town's Hillside Specific Plan and Hillside Development Standards and Guidelines ensure that open space areas in the Hillsides are preserved to the greatest extent possible by the Town. The viewsheds and existing character of the hillsides and open space areas are carefully maintained through the implementation of this General Plan and the Town's various planning processes. (2020 General P l an at OSP-5 .) To facilitate the protection of Open Space within the T own, the General Plan identifies several Goals and Policies designed to maintain and achieve those goa1s . As Los Gatos Town Council April 27, 2018 Page 12 discussed in the Fordyce comments, the proposed Project is inconsistent with the General Plan's Goals OSP-2 and OSP-5. (See also Fordyce Comments at pp. 6.) Goal OSP-2 provides for the preservation of open space in hillside areas as natural open space. The Project also violates OSP Policy 2.1, which provides that for the preservation of natural open space character of hillside lands, including natural topography, natural vegetation, wildlife habitats and migration corridors, and viewsheds. The Project is also inconsistent with OSP Goal 5. OSP Goal 5 requires the Town "to create and maintain open space areas and parks that enhance and blend into existing natural habitats, residential neighborhoods, and other Town features." (2020 General Plan at OSP 14.) In implementing OSP Goal 5, the OSP Policy 5 .4 provides for the Town to "maintain the Town's high standards for landscaping and tree preservation, helping to maintain cohesiveness between existing neighborhoods and surrounding open space areas and reducing disturbances to adjacent natural habitats. As discussed in the Project Description the proposed Project preserves only 19 percent of the property as open space, while residential lots comprise 74 percent of the site and roads comprise 7 percent. (DEIR at p . 3-4.) The EIR fails to identify or discuss how a 81 percent loss of Open Space bordered in part by residential neighborhood and in part by hillside residential complies with the goals and policies of the General Plan's Open Space Element. c. THEEIR'S IMPACT ANALYSIS REGARDING LAND USE IS LEGALLY INADEQUATE Impact 4.1-2: In evaluating the Project's consistency with the applicable General Plan and other planning documents, the EIR compares the project's consistency with the 1961 General Plan prior to have been under a Williamson Act contract. (DEIR at p . 4.1 - 20.) The EIR concludes that the Project's uses and density would be consistent with the 1961 General Plan at the time the property was designated agricultural preserve under the Williamson Act. The EIR applies the wrong standard and/or baseline for making this determination. When a project involves the revision of a plan or policy, the project's impacts are assessed against existing conditions. (CEQA Guidelines,§ 15126.6(e)(3(A); see also Woodward Park Homeowners Ass'n v . City of Fresno (2007) 150 CalApp.4th683, 707.) Thus, the EIR must base its consistency analysis on the existing land use designations and land use, not upon an outdated General Plan from 50 years ago. The baseline for evaluating impacts is the date of the Notice of Preparation, not a zoning or land use designation from many decades past. (See CEQA Guidelines, 15125(a); Save Our Peninsula Comm. v . Monterey County Board of Supervisors (2001) 87 Ca1App.41h 99, 125; see also Woodward Park Homeowners Association v. City of Fresno (2007) 150 Cal App .4th 683, 707 (EIR for planning and zoning changes for a new commercial development rejected because EIR compared proposed development only to hypothetical Los Gatos Town CounciJ April 27, 2018 Page 13 office park that could be developed under preexisting plan but did not compare proposed development with existing physical conditions on site.).) The EIR's reliance on the zoning prior to the Williamson Act contract to evaluate impacts violates CEQA's basel ine requirements . Impact 4.1-3: The EIR concludes that the Project's conflict with current zoning of Agriculture and the Williamson contract does not constitute a potentially significant environmental impact. The i mpact analysis states t hat the current zoning is Agriculture. This contradicts the statement in Impact 4.1-2 that states the current zoning i s Resource Conservation. (See DEIR at p. 4.1-19.) 2. Hydrology and Water Quality Impact 45-4 states that the Project will not create or contribute to runoff water that would exceed the capacity of existing or planned stormwater drainage. As discussed above the "project features" regarding stormwater drainage should be mitigation measures . (Lotus v. Department of Transportation (2014) 223 Cal.App.4th 645, 656, citing Pub . Resources Code,§§ 21100(b), 21081, CEQA Guidelines,§ 15126, 15C1Jl.) 3. Aesthetics The Final BIR dismisses comments on the Project's significant impacts to aesthetic values, specifically scenic views of the project area. (FEIR at pp. 2-98 to 2-99 .) The Final EIR dismisses these concerns based upon the assumption that the views are only "private views" and not "public views". This assertion is not supported by substantial evidence or case law . As indicated in JiJI Fordyce's comments, these are not private views enjoyed by only a few property owners, but scenic views enjoyed from many points of view and several neighborhoods. Thus, the Project's adverse impacts to views are upon the environment of persons in general. Moreover, case law is cJear that aesthetic impacts can be impacts on a neighborhood or neighborhoods. (See e.g. Pocket Protectors v . City of Sacramento (2005) 124 Cal.App.4th 903, 928 .) Additionally, Appendix G to the CEQA Guidelines states in relevant part that a project will normally have a significant effect on the environment if it will have a substantial , demonstrable negative aesthetic effect. Thus, "the CEQA Guidelines essentially establish a rebuttable presumption any substantial, negative aesthetic effect is to be considered a significant environmental impact for CEQA purposes" (Quail Botanical Gardens Foundation, Inc . v. City of Encinitas (1994) 29 Cal.App.4th 1597, 1605.) In Pocket Protectors, the court accepted as substantial evidence the lay testimony of neighbors regarding the potential land use and aesthetic impacts of a proposed housing development in a Planned Unit Development (PUD). The court held that the relevant personal observations of area residents qualified as substantial evidence of potential adverse environmental impacts of minimizing the open space and landscaping required by the PUD are substantial evidence. The Court concluded that that where the neighbors Los Gatos Town Council April 27. 2018 Page 14 offered detailed factual observations about what they regarded as deficiencies in the open space and landscaping requirements applied to the proposed project, such testimony constituted substantial evidence of both land use and aesthetic impacts. (124 Ca1App.4th at pp. 928-932.) · The Town's reliance upon Association for Protection of Environmental Values in Ukiah v. City of Ukiah , 2 Cal App .4th 720, 735 is misplaced. (See FEIR at pp. 2-98.) In Association/or Protection, case involved the construction of a single-family dwelling on a lot, which was the last to be developed in a neighborhood of single-family residences. The court found that there was no evidence such construction of that single family resMences in an already developed neighbor would -would adversely affect the environment of persons in general would adversely affect the environment of persons in general. (Id.) That is not the facts regarding this Project. This Project involves the development of open space that is currently under a Williamson Contract, not a single lot in an already developed neighborhood. Moreover, the Project's visual impacts will be experienced not by a single or even a few property owners, but the community as a whole. Il. THE WILLIAMSON ACT As discussed above, the Project requires the cancellation of the Williamson Act contract for the land. The Town, however, fails to address whether any alternative site that would be noncontracted land is in proximate location to the proposed project. III. THE DEVELOPER HAS IGNORED THE PLANNING COMMISSIONERS' RECOMMENDATION TO REDUCE THE DENSITY As discussed above, the Planning Commissioners had significant discussion regarding the Project's density and whether the number of lots should be reduced from 10 to as few as 6. It was quite clear from the discussion that the Planning Commission recommended that there be no more than 8 lots and that significant consideration should be given to reducing the Project to 6 lots and specifically removing lots 6 and 7 from any deveJopment. The applicant's most recent submission of the proposed development does not include any plans showing fewer than 9 lots/homes. Given the Planning Commissioners' discussion and recommendations the applicant should have provided the Town Council plans showing a reduced density alternative of 6 lots. The failure to do so indicates the applicant's disregard for the Commissioners' concerns and discussion at the February 28 Planning Commission meeting . Moreover, it deprives the Town Council the opportunity to fully evaluate the Commissioners• recommendations regarding a reduced density project. IV. CONCLUSION As demonstrated in these comments, the comments submitted by others, and the Los Gatos Town Council April 27, 2018 Page 15 testimony and discussion before the Planning Commission, the BIR fails to meet CEQA 's minimum requirements. Moreover, the BIR fails as an informational document to the decisionmakers and public . As such, certification of the BIR and approval of the Project would constitute a prejudicial abuse of discussion and be contrary to law . cc: Clients April 27 , 2018 Town of Los Gato s Mayor Rob Rennie Vic e Mayo r Steven Leon ardi s Council Member Marcia Jensen Council Member Marica Sayoc Council Member Barbara Spector Subje ct : Twin Oaks Drive subdivision plan -PD-10-006 We are against development of this pristine, beautiful property, one of the few open space areas left in Los Gatos . Like our neighbors, we were told that this property would not be developed, when we purchased our home at 106 Blueberry Hill Drive in 1994. It is one of the reason s we decided to purchase in Surrey Farms . You have heard all the objections; loss of hillside/open space , disruption of wildlife species and vegetation, increased high fire risk, potential for erosion, drainage and flooding problems, health and safety concerns re : the proposed drainage pond (for both Surrey Farms and Hillbrook School) etc .etc. Since Longmeadow Drive will be the main entrance street for the construction vehicles, we are also concerned that we will have to tolerate the safety, noise and dust issues for years, as the proposed development continues, year after year, as each lot is developed. Please do not allow this to be approved, for the sake of your Los Gatos neighbors, and our community. Lar ry and Ro salie Hallinan 106 Blueberry Hill Drive Los Gatos, Ca. 95032 408 -358 -5043 cc: Jilli Fordyce