2011-026 - Recertify EIR For 15881 Linda Avenue And 15950 Stephenie LaneRESOLUTION 2011 -026
RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF LOS GATOS
RECERTIFYING A FINAL ENVIRONMENTAL IMPACT REPORT, AS AMENDED,
IN CONNECTION WITH A PROJECT (PD -08 -004, 5 -08 -014 TO 5 -08 -020, AND EIR -09-
001) AND TO RATIFY AND REAFFIRM THE PROJECT (PD -08 -004, 5 -08 -014 TO 2 -08-
020) TO CONSTRUCT A SEVEN LOT SUBDIVISION LOCATED AT 15881 LINDA
AVENUE AND A PORTION OF 15950 STEPHENIE LANE
WHEREAS
A. The Applicant, Mission Way Partners, proposed a project to adjust a lot line
between 15881 Linda Avenue and 15950 Stephenie Lane, subdivide the newly created parcel and
construct seven residences. The project included Planned Development Application PD -08 -004,
Architecture and Site Applications 5 -08 -014 to 5 -08 -020, and Environmental Impact Report
EIR -09 -001 (the "Linda Court Project "). The Project site is located at15881 Linda Avenue and
15950 Stephenie Lane ( "Property ").
B. Pursuant to the California Environmental Quality Act and the implementing
Guidelines adopted therefore ( "CEQA "), a Notice of Preparation ( "NOP ") of an Environmental
Impact Report ( "EIR ") for the Linda Court Project was issued on February 27, 2009.
C. A public scoping meeting was held on March 18, 2009 to receive comments
regarding the scope of issues to be addressed in the EIR;
D. A Draft Environmental Impact Report ( "DEIR ") to analyze potential impacts
associated with the Linda Court Project was prepared and issued for agency and public review
and comment on February 9, 2010 for a 45 -day review period.
E. The Town prepared a Final Environmental Impact Report ( "Final EIR"),
incorporating responses to comments on the DEIR which was issued on July 22, 2010.
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050311- 17938001
F. The Planning Commission held a duly noticed public hearing on August 11, 2010,
at which time the Commission considered the public testimony, the staff report prepared for that
meeting ( "Staff Report"), and all other documentation related to the Linda Court Project, and
recommended that the Town Council deny the Planned Development application and approve the
Final EIR for the Linda Court Project.
G. The Town Council held a duly noticed public hearing on September 7, 2010, at
which time the Town Council considered the public testimony, the Staff Report, and all other
documentation related to the Linda Court Project.
H. The Town Council certified that the Final EIR had been completed in compliance
with CEQA, that the Final FIR was presented to the Town Council as the final decision - making
body, which reviewed and considered the information contained in the Final FIR prior to
approving the Linda Court Project, and that the Final EIR reflected the independent judgment of
the Town.
I. In compliance with Judgment Granting the Peremptory Writ of Mandate ( "Writ')
dated September 5, 2008, and pursuant to Public Resources Code Section 21081, subdivision (a),
the Town adopted findings for the Linda Court Project Final EIR Said findings are contained in
Resolution 2010 -092, adopted September 7, 2010, and are attached hereto as Exhibit "A" and
incorporated by this reference.
J. In further compliance with the Writ, the Town and Real Parties, Linda Court
Partners ( "Respondents "), filed a Supplemental Return to Writ of Mandate ( "Supplemental
Return") on November 24, 2010. Ross Creek Neighbors ( "Petitioners ") opposed the
Supplemental Return.
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K. The matter was heard by Honorable Judge Leslie Nichols on February 10, 2011.
On March 8, 2011, the Court issued its ORDER RE: RETURN ON WRIT OF MANDATE.
Thereafter the Parties met and conferred with the Court on March 30, 2011. As agreed in that
conference, the Parties submitted written correspondence and documents to the Court on April I,
2011. Respondents submitted a letter dated March 29, 2011, from the Department of Toxic
Substance Control ( "DTSC ") in its correspondence to the Court.
L. On April 4, 2011, the Court issued its NOTICE. The Court found that it was
unnecessary to execute Petitioners' Proposed Judgment and Proposed Peremptory Writ. The
Court further found that the Town need only correct the deficiency in the Final EIR, which the
Court identified as being solely the failure to properly respond to the DTSC comment letter dated
March 23, 2010, ( "DTSC Letter "). The Court noted that this position was supported by the
authorities cited by Respondents.
M. Further, the position that the Town need only correct the deficiency in the Final
EIR that the Court identified before considering recertification of the Final EIR is supported by
Protect the Historic Amador Waterways v. Amador Water Agency (2004) 116 Cal.App.4` 1099
and Tracy First v. City of Tracy (2009) 177 Cal.AppAth 912.
N. The Town's environmental consultant, Strelow Consulting, reviewed the ERAS
Phase I Environmental Site Assessment dated January 9, 2007 ( "ESA "), the Phase I
Environmental Assessment Addendum review dated April 13, 2011 ( "ERAS Review "),
concerning the ESA and the DTSC Letter, and revised its response to the DTSC Letter. This
response is set forth in the Town's Addendum - Amendment to Final EIR, dated April 18, 2011
( "Amendment ").
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O. As supported by Tracy First i;. City of Tracy (2009) 177 Cal.App.4th 912, the
Town Council may certify an amendment to a Final EIR without recirculation and without
Planning Commission review of the amendment because the Planning Commission had
previously recommended approval of the Final EIR and the Linda Court Project has not changed
or been modified.
P. The Town forwarded the Amendment to DTSC on or about April 21, 2011, for its
review.
Q. The Town Council held a duly noticed public hearing on May 2, 2011, at which
time the Town Council considered the public testimony, the staff report dated April 21, 2011, the
Amendment and all other documentation related to the Linda Court Project.
R. The location and custodian of the documents or other materials which constitute
the record of proceedings upon which the Town Council's decision is based is in the office of the
Town Clerk, 110 E. Main Street, Los Gatos, CA 95030.
RESOLVED:
1. The findings set forth herein are made by the Town Council as the Town's findings
pursuant to CEQA relating to the Linda Court Project. These findings provide the
written analysis and conclusions of the Town Council regarding the Amendment for
the Linda Court Project.
2. The revised response to the DTSC Letter contained in the Amendment consists of a
re- analysis of previously available information. It does not contain any written
materials or conclusions that would require that either a subsequent EIR, or a
supplement to the EIR be prepared pursuant to CEQA Guidelines Sections 15162,
15163 or 15164.
W
I
. The revised response to the DTSC Letter and the ERAS Review contained in the
Amendment do not contain "significant new information" within the meaning of
CEQA Guidelines Section 15088.5 that would indicate that recirculation of the Final
EIR is necessary. The only new information is related to past agricultural use at the
Linda Court Project site and potential pesticide use and does not change the
conclusions in the Final EIR regarding potential exposure to hazardous materials
(pesticides). The new information provides clarification and additional support for the
conclusion in the Final EIR that soil or groundwater sampling for pesticides was not
recommended or deemed necessary. See Laurel Heights Improvement Ass'n v. U.0
Regents (Laurel Heights II) (1993) 6 Cal.4` 1112; Vineyard Area Citifens for
Responsible Growth, Inc, v. City of Rancho Cordova (2007) 40 Ca1.4` 412
(recirculation not required where new information merely clarifies or amplifies the
previously circulated draft EIR).
4. The revised response to the DTSC Letter contained in the Amendment does not result
in a new significant impact and does not result in a substantially more severe
significant impact than were analyzed in the Final EIR, as a significant impact was
not identified. Similarly, there are no substantial changes with respect to the
circumstances under which the Linda Court Project is undertaken that would involve
new significant impacts or a substantial increase in significance of previously
identified impacts.
5. The revised response to the DTSC Letter contained in the Amendment has not
resulted in any changes or modifications to the Linda Court Project as previously
approved.
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6. The Amendment found that the ERAS Review indicates that further testing is not
suggested or required by the DTSC Guidance documents covering such properties.
Therefore, this additional infonnation clarifies and supports the 2007 conclusion in
the ESA, and ERAS and DTSC continue to recommend no further testing at this time.
7. The revised response to the DTSC Letter contained in the Amendment satisfies the
requirements of CEQA to furnish a good faith, reasoned response, based on evidence
in the record, to the DTSC Letter.
3. The Town Council finds that it has reviewed and analyzed the Amendment and other
information submitted and has considered the information submitted, including the
written and oral comments received at the public hearing on the Amendment, prior to
acting upon or recertifying the Final FIR, as amended, and that the Final FIR, as
amended, represents the independent judgment of the Town.
9. Based on the forgoing, the Town Council hereby recertifies the Final FIR, as
amended, finding that it has been completed in compliance with CEQA, that the Final
EIR, as amended, was presented to the Town Council as the final decision - making
body, which reviewed and considered the information contained in the Final FIR, as
amended, prior to ratifying and reaffirming the prior approval of the Linda Court
Project, and that the Final FIR, as amended, reflects the independent judgment of the
Town.
10. The Town Council hereby ratifies and reaffirms the prior approval of the Linda Court
Project, as fully set forth in Resolution 2010 -092 and Ordinance 2193, adopted
September 20, 2010, and incorporated by this reference.
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Action to recertify the Final EIR, as amended:
PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Los
Gatos, California held on the 2 "d day of May, 2011, by the following vote:
COUNCIL MEMBERS:
AYES: LEONARDIS, MCNUTT, RICE, SPECTOR, and PIRSYNSKI
NAYS: NONE
ABSENT: NONE
ABSTAIN: NONE
Action to ratify and reaffirm the prior approval of the Linda Court Project:
PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Los
Gatos, California held on the 2 "d day of May, 2011, by the following vote:
COUNCIL MEMBERS:
AYES: MCNUTT, RICE, and PIRZYNSKI
NAYS: SPECTOR
ABSENT: NONE
ABSTAIN: LEONARDIS
SIGNED:
MAYOR O HE TOWN O OS GATOS
LOS GATOS, CALIFORNIA
zi r MINIST TOR OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
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