2011050207 - 15881 Linda Avenue and 15950 Stephenie Lane - Planned Development - Amend EIR<a q nF MEETING DATE: 05/2/11
/ ITEM NO:
�Og �pjOg COUNCIL AGENDA REPORT
DATE: April 21, 2011
TO: MAYOR AND TOWN COUNCIL Try
FROM: GREG LARSON, TOWN MANAGER
SUBJECT: PLANNED DEVELOPMENT PD -08 -004: AND ENVIRONMENTAL IMPACT
REPORT EIR- 09 -01. PROJECT LOCATION: 15881 LINDA AVENUE &
15950 STEPHENIE LANE. PROPERTY OWNER/APPLICANT: MISSION
WAY PARTNERS
A. CONSIDER AN AMENDMENT TO THE FINAL ENVIRONMENTAL
IMPACT REPORT (FEIR) AND RECERTIFY THE FEIR (EIR -09 -001)
IN CONNECTION WITH THE LINDA COURT PROJECT (PD -08 -004,
S -08 -014 TO S -08 -020), PREVIOUSLY CERTIFIED ON SEPTEMBER
7, 2010; AND
B. CONSIDER RATIFYING AND REAFFIRMING THE PRIOR
APPROVAL OF THE LINDA COURT PROJECT CONSISTING OF
PLANNED DEVELOPMENT APPLICATION PD -08 -004 AND
ARCHITECTURE AND SITE APPLICATIONS S -08 -014 THROUGH
S -08 -020, ON SEPTEMBER 20, 2010, TO CHANGE THE ZONE
FROM R -1:8 TO R- 1:8:PD, FOR A SEVEN -LOT SUBDIVISION, FOR
A LOT LINE ADJUSTMENT BETWEEN TWO PARCELS ZONED R-
1:8, TO DEMOLISH A SINGLE - FAMILY RESIDENCE, AND TO
CONSTRUCT SEVEN SINGLE - FAMILY RESIDENCES. APNS 523-
25 -052 (FORMERLY 020) AND 051 (FORMERLY 036).
RECOMMENDATION
After opening and closing the public hearing, it is recommended the Town Council:
1. Adopt a Resolution to recertify the FEIR (EIR -09 -001) (Attachment 1) (motion required);
and
2. Ratify and reaffirm the prior approval of the Linda Court Project applications: PD -08 -004,
and S -08 -014 through S -08 -020. (motion required).
PREPARED BY : \�Wendie R. Rooney, Director of Community Development
Reviewed by: Assistant Town Manager Town Attorney Clerk Finance
Community Development
N:\DEVUC REPORTS\2011 \15881 Linda Ave FEIR TC 5- 2- 11.doc Reformatted: 5/30/02
PAGE 2
MAYOR AND TOWN COUNCIL
SUBJECT: 15881 LINDA AVENUE/FILE #PD -08 -004, FIR -09 -01
April 21, 2011
BACKGROUND
The Town contracted with the enviromnental consulting firm of Strelow Consulting in January 2009
to conduct the environmental assessment and to prepare the EIR to rezone the property at 15881
Linda Avenue and a portion of the property at 15950 Stephenie Lane fi R -1:8 to R- 1:8:PD. On
August 11, 2010, the Planning Commission considered a Planned Development (PD) of a seven -lot
subdivision, demolition of the existing residence, construction of seven new single family residences,
and forwarded a recommendation to deny the Planned Development application and certify the EIR to
the Town Council. On September 2, 2010, the Town Council approved the Planned Development and
EIR and on September 16, 2010, the Town Council adopted the Planned Development Ordinance.
Subsequent to the Town Council's certification of the EIR, the Town returned the certified EIR to the
Santa Clara County Superior Court for consideration. The Court determined that the EIR was
adequate, complete and in compliance with CEQA in all respects, with the exception of the response
to a comment letter submitted by the California Department of Substances Control (DTSC). The
DTSC letter had reconunended that soil and possibly groundwater testing be done to evaluate the
potential for pesticide residues on the property.
DISCUSSION
As a result of the court decision, the Town's Environmental Consulting firm, Strelow Consulting has
provided an Addendum - Amendment to Final Environmental Impact Report to provide an expanded
response to DTSC's comment letter (Attachment 2). The addendum - amendment includes re- analysis
of previously available information by the environmental consultant ERAS, specifically the history
of pesticide use on the property in light of the DTSC's letter. The conclusion of this re- analysis is
that the finding of the original Phase I Environmental Analysis (prepared by ERAS) is accurate and
no further testing for - pesticides is required. Additionally a letter from DTSC to Town staff dated
March 29, 2011, indicates that the response to the comment in the FEIR was adequate (Attachment
2). The analyses and letter confirm and provide new evidence for the FEIR finding and response that
soil or water sampling for pesticides is not warranted given the historic use of the site.
The Addendum - Amendment to the Final EIR contains an expanded response to comment, but it does
not contain any materials or conclusions that would require that either a subsequent EIR or a
supplement to the EIR be prepared pursuant to CEQA Guidelines Section 15162, 15163 or 15164. It
also does not contain "significant new information" within the meaning of Guidelines Section
15088.5 that would require re- circulation of the EIR.
The Addendum - Amendment to the Final EIR has been sent to the DTSC for a 10 day review period
prior to the Town Council hearing on this matter.
PAGE 3
MAYOR AND TOWN COUNCIL
SUBJECT: 15881 LINDA AVENUE/FILE 4PD -08 -004, EIR -09 -01
April 21, 2011
CONCLUSION
Based on the above noted analysis, it is recommended that the Town Council adopt the resolution
to recertify the FEIR (Attachment 1) in order to comply with the direction of the Court.
Furthermore, given the fact that the DTSC letter does not affect the findings that the Town
Council previously made when approving the PD and architecture and site applications, staff
recommends that the Town Council ratify and reaffirm the prior approval of PD -08 -004 and
Architecture and Site Applications S -08 -014 through S -08 -020.
FISCAL IMPACT
None
ATTACHMENTS:
1. Resolution to recertify the FEIR (EIR -09 -001)
2. Addendum - Amendment to Final Environmental Impact Report dated April 15, 2011, prepared by
Strelow Consulting.
DISTRIBUTION:
California Department of Toxic Substance Control, 700 Heinz Avenue, Berkeley, CA 94710 -2721
Mission Way Partners, 214 Almendra Ave., Los Gatos, CA 95030
Strelow Consulting, P.O. Box 2896 Santa Cruz, CA 95063 -2896
Dan Blue 15950 Stephanie Lane, Los Gatos, CA 95032
Berliner Cohen, 10 Almaden Blvd. #1100, San Jose, CA 95113 -2270
N:\DEV\TCREPORTS\2011 \15881 Linda Ave FEIR TC5- 2- 1l.doe
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RESOLUTION 2011-
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, S -08 -014 TO S -08 -020, AND EIR -09-
001) AND TO RATIFY AND REAFFIRM THE PROJECT (PD -08 -004, S -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 S -08 -014 to 5 -08 -020, and Environmental Irnpact 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 Enviromnental 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 Enviromnental Impact Report ( "Final EIR "),
incorporating responses to comments on the DEIR which was issued on July 22, 2010.
IJH1846126.5
042511 - 17938001
-I-
ATTAGMfENT 1
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 EIR was presented to the Town Council as the final decision - snaking
body, which reviewed and considered the information contained in the Final EIR 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.
WN46126.5 -2-
042511- 17938001
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 1,
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 An7ador Waterways v. Amador Water Agency (2004) 116 Cal.App.4" 1099
and Tracy First v. City of Tracy (2009) 177 Cal.App.4th 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 ").
WM846126.5 -3-
042511- 17938001
O. As supported by Tracy First v. 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:
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.
UW46126.5 -4-
042511- 17938001
3. 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 bnprovennent Ass'n v. U C
Regents (Laurel Heights II) (1993) 6 CalA 1112; Vineyard Area Citizens for
Responsible Growth, Inc, v. City of Rancho Cordova (2007) 40 Cal.4 °i 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.
WH1846126.5 -5-
042511- 17938001
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 information 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 Punish a good faith, reasoned response, based on evidence
in the record, to the DTSC Letter.
S. 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 EIR, 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
FIR, 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 EIR, 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.
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:
IJM846126.5 -6-
042511- 17938001
COUNCIL MEMBERS:
AYES:
NAYS:
ABSENT:
ABSTAIN:
ATTEST:
SIGNED:
MAYOR OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
CLERK ADMINISTRATOR OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
1JH1846126.5 - 7 -
042511- 17938001
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TOWN OF LOS GATOS
CONWMTY DEVELOPMR:NT DRPARTMENT
PLANNING DIVISION
PHONE (408) 354 -6872
FAX (408) 354 -7593
CIVIC CENTER
110 E. MAIN STREET
P.O. Box 949
Los GATos, CA 95031
ADDENDUM- ANIENDNIENT TO
FINAL ENVIRONMENTAL EVIPACT REPORT (SCH #2007032104)
LINDA AVENUE 7 -LOT SUBDIVISION
TO: Henry Chui, Department of Toxic Substance Control; 700 Heinz Avenue, Berkeley, CA
94710 -2721
DATE: Apri121, 2011
SUBJECT: An Addendum - Amendment to the Final Environmental Impact Report has been prepared by
the Town of Los Gatos.
PROJECT LOCTION: 15881 Linda Avenue & 15950 Stephanie Lane, Los Gatos, CA
DESCRIPTION Consider an Amendment to the Final Environmental Impact Report (FEIR) and
recertify the FEIR (EIR -09 -001) in connection with the Linda Court Project (PD -08 -004, S -08 -014 to
S -08 -020), previously certified on September 7, 2010; and consider ratifying and reaffirming the
prior approval of the Linda Court Project consisting of Planned Development Application PD -08-
004 and Architecture and Site Applications S -08 -014 through S -08 -020, on September 20, 2010, to
change the zone from R -1:8 to R- 1:8:PD, for a seven -lot subdivision, for a lot line adjustment
between two parcels zoned R -1:8, to demolish a single - family residence, and to construct seven
single - family residences. APNS 523 -25 -052 (formerly 020) and 051 (formerly 036).
LEAD AGENCY Town of Los Gatos Community Development Department
PROPERTY OWNER: Dan Blue and Mission Way Partners
APPLICANT: Dan Blue and Mission Way Partners
Comments should be submitted in writing to Heather Bradley at the Community Development Department, at
the above address or emailed to hbradley@los¢atosca ¢ov The Town Council public hearing on this matter is
scheduled for Monday May 2, 2011. If you have any questions in this matter, please contact Heather Bradley at
(408) 354 -6806.
ATTACHMENTS
Addendum - Amendment to the Final Environmental Impact Report (SCH #2007032104), dated April
18, 2011.
Attachment 2
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TOWN OF LOS GATOS
ADDENDUM - AMENDMENT TO FINAL ENVIRONMENTAL
IMPACT REPORT
LINDA COURT RESIDENCES
"THE PRESERVE AT ROSS CREEK"
STATE CLEARINGHOUSE #2007032104
-APRIL 1 - 8, 201 1 - - -
REPORT PURPOSE
This document is an addendum - amendment to that certain Final Environmental Impact
Report ( "FEIR ") for the Linda Court Residences project, SCH2O07- 032104, prepared for the
Town of Los Gatos (the "Town'), dated July 2010, The FEIR was certified as complete and
adequate in accordance with CEQA by the Town Council of the Town on September 7, 2010.
Based upon the FEIR, the Town Council adopted a PD Zoning Ordinance and approved a Lot
Line Adjustment, and other entitlements have been issued for the underlying residential
project, including a Tentative Map and Architectural and Site Approval (the "Project "). The
Project site is located at 15881 Linda Avenue and 15950 Stephenie Lane ( "Property ").
The FEIR had been prepared following invalidation in Case No. 1- 08 -CV- 106461 (the
"Lawsuit ") by Judge Leslie C. Nichols of the Superior Court of the Mitigated Negative
Declaration that had been initially prepared for the prior version of the Project. The Court had
issued a Writ of Mandate to the Town of Los Gatos following its initial decision in the
Lawsuit. The Town filed a Supplemental Return to said Writ following the approval of the
Project based upon the FEIR. Petitioners in the Lawsuit challenged the Supplemental Return,
arguing that the FEIR was inadequate in a number of respects. Judge Nichols issued his
"Order Re: Return on Writ of Mandate" on March 8, 2011, in which he determined that the
FEIR was adequate and completed in compliance with CEQA in all respects, with only one
exception. That exception involved the response to a comment letter on the Draft FIR dated
March 23, 2010, submitted by the State Department of Toxic Substances Control (the "DTSC
Letter'). The DTSC Letter (attached hereto as EXHIBIT A) appears at page 4 -14, -15 of the FEIR
(pages D0351 -2 in the Administrative Record) and the response appears at page 4 -16 of the
FEIR (AR page D0353). Judge Nichols determined that the response was not a "proper
reasoned response supported by substantial evidence." (Order, page 5.)
On April 4, 2011, Judge Nichols issued a Notice in which he responded to a disagreement
among the parties to the Lawsuit as to whether or not the prior approvals were required to be
vacated in full and a revised Draft EIR prepared. Judge Nichols's response was that it was
unnecessary to do so, and that "Respondent [the Town of Los Gatos] need only correct the
deficiency in the Environmental Impact Report which the Court identified."
As previously noted, the Court had rejected Petitioners myriad challenges to the FEIR except
for the one response to the DTSC Letter. The DTSC Letter had recommended that, in light of
past agricultural use of the property, soil and possibly groundwater testing should be
undertaken to evaluate the possibility of the continued presence of pesticide residues. The
original response to the comment stated the that no such testing was necessary based on
recommendations provided in the Phase I Environmental Site Assessment and the fact that
use of the property as a former orchard had ceased over 50 years ago. In response to the
Court's Order finding that the original response was inadequate, the Town has asked the
original environmental consultants who conducted the Phase I Environmental Site
Assessment of the Property, ERAS Environmental, Inc., to re- evaluate its earlier
recommendation that no such testing was needed.
ERAS has provided a letter to the Town dated April 13, 2011 (attached hereto as EXHIBIT B)
summarizing their re- analysis of the history of the property in light of the DTSC Letter. Their
conclusion, based upon a re- analysis of the previously available materials, continues to be that
no further testing is required. In addition, it is noted that DTSC itself, in a correspondence to
the Town dated March 29, 2011 (attached hereto as EXHIBIT C), stated that they had received the
FEIR, including the original response to the DTSC Letter, well in advance of the certification of
the FEIR by the Town, and had concluded at that time that the original response was
adequate.
11. SUMMARY OF FINDINGS
The Phase 1 Environmental Site Assessment follow -up review letter, dated April 13, 2011
( "ERAS Review "), confirms that the Project site was planted with orchards after 1919 and
prior to 1943 and originally consisted of two parcels — a western parcel and an eastern parcel.
The southern half of the eastern parcel was developed in 1948 with two residential buildings.
Although residual orchard trees remained on the eastern parcel, the change in ownership
would have ended the use of the Property as a commercial agricultural operation. Based on
historical aerial photograph review, by 1956 the western parcel had been cleared of trees and
was open grassland. The investigation further concluded that the former orchard would have
been dry- farmed (not irrigated) and that significant grading and filling of part of the Property
OA
had been documented. Both these conditions would eliminate the site from recommended soil
sampling as set forth in the DTSC's guidelines for sampling agricultural properties. Therefore,
the review confirmed that it does not appear that residual pesticides or other contaminants are
a concern for the development of the Project.
A revised response to the DTSC letter, which is provided in the next section, consists of a re-
analysis of previously available information. It does not contain any materials or conclusions
that would require that either a subsequent EIR or a supplement to the EIR be prepared
pursuant to Guidelines Section 15162, 15163, or 15164. It also does not contain "significant
new information' within the meaning of Guidelines Section 150885 that would indicate that
recirculation of the EIR is necessary. The new information is only related to past agricultural
use at the Project site and potential pesticide use and does not change the conclusions in the
EIR regarding potential exposure to hazardous materials (pesticides). It provides additional
support for the conclusion in the Final FIR that soil or groundwater sampling for pesticides
was not recommended or deemed necessary. It does not result in a new significant impact
and does not result in a substantially more severe significant impact as analyzed in the FIR as
a significant impact was not identified for this issue. Similarly, there are no substantial
changes with respect to the circumstances under which the Project is undertaken that would
involve new significant impacts or a substantial increase in significance of previously
identified impacts. This review has not resulted in any changes or modifications to the
approved Project as approved. It is believed that the following response satisfies the
requirements of CEQA to furnish a good faith, reasoned response, based on evidence in the
record, to the DTSC Letter.
Ill. CHANGES TO FINAL EIR
Changes to Final EIR text that are identified below are shown in underlined type for new text
and s tr ik Po .+ type for deleted text.
Page 4 -16 Expand Response to Comment 2 -1 as follows:
LETTER 2 — CALIFORNIA DEPARTMENT OF TOXIC SUBSTANCES CONTROL
2 -1 Pesticide Contamination The comment recommends that soil and
groundwater sampling for pesticides be conducted due to past agricultural
uses on the site. A Phase 1 Environmental Assessment was conducted for the
project (ERAS Environmental, June 2007), and is summarized in the Initial
Study (see pages 22 -23 of Appendix A of the DEIR). The assessment
indicated that the site had been in residential use since early 1948 and part of
the property had been used as an orchard until approximately 1955. The
report concluded that no evidence was discovered during the assessment to
indicate that activities currently or historically conducted on or near the
property have contributed to soil or groundwater contamination. The
assessment did not recommend soil or groundwater sampling or a Phase II
investigation.
The Town asked the original environmental consultants who conducted the
Phase I Environmental Site Assessment of the Property, ERAS
Environmental, Inc„ to re- evaluate its earlier recommendation that no such
testing was needed. The ERAS Review included as EXHIBIT 8, is summarized
below.
The ERAS Review indicates that the Project site was planted with orchards
after 1919 and prior to 1943 and originally consisted of two parcels — a
western parcel and an eastern parcel The southern half of the eastern parcel
was developed in 1948 with two residential buildings Although residual
orchard trees remained on the eastern parcel the change in ownership
would have ended the use of the Property as a commercial agricultural
operation Based on historical aerial photograph review, by 1956 the western
parcel had been cleared of trees and was open grassland Subsequent aerial
photographs indicated the continued presence of a few residual orchard
trees on the eastern portion of the Property one of which appeared to be of
commercial use.
In Tune 2000 DTSC issued interim guidelines regarding sampling for
agricultural properties that were being converted to schools to determine
whether the past use of agricultural chemicals on those properties could
pose a risk to subsequent school uses In August 2008 DTSC issued a third
revision to its "Interim Guidance for Sampling Agricultural Soils " to
provide a uniform approach for evaluating_ former agricultural properties
where pesticides have been applied This revision incorporates and refines
the sampling and risk assessment approach to former . agricultural
properties The scope of this document is "limited to evaluating only
agricultural properties during a Preliminary Endangerment Assessment
(PEA) or other initial sampling investigation." This applies to proposed new
and /or expanded school sites or other projects where new land use could
result in increased human exposure especially residential use The
Guidelines further indicate that "agricultural properties are lands where
pesticides were uniformly applied for agricultural purposes consistent with
normal application practices and where other non - agriculturally related
activities have been absent."
According to the DTSC's Guidelines' sections 2,2 and Section 2.3.2, the
guidelines for sampling do not apply to urban sites previously graded and
disturbed or to dry -land farmed agricultural soils as outlined below.
` California Department of Toxic Substances Control. August 7, 2008, "Interim Guidance for
Sampling Agricultural Properties (Third Revision)."
El
The ERAS Review of the site topography and surveyed topographic map
identifies a significant slope transition on the project site from the eastern
property line to the western of approximately 40 feet This would exclude
the possibility that the orchard was irrigated but would rather suggest that
was dry farmed as was common practice in Santa Clara Valley during that
period. Additionally, no physical drainages or irrigation water conveyance
features were apparent on the 1948 and 1956 aerial photos Therefore it
appears very likely that the former orchards on the Property were dry
farmed.
Furthermore the eastern portion of the Property would have been
significantly graded in 1948 to accommodate the residential development
due to the natural slope of the former orchard This area also received
considerable fill material as evidenced in two borings drilled by Redwood
Geotechnical Engineers in .2006 (B -1 and B -6) as part of the Proiect
geotechnical investigation conducted for the proposed Project in which 2 to
4.5 feet of fill was encountered in the eastern portion of the Property.
Additionally, the western portion of the Project site was open grassland from
at least 1956 Therefore this part of the Property would have been disturbed
on at least an annual basis since that time by disking operations for weed
control.
Based on DTSC's guidelines it appears that the Project does not meet the
criteria that would require sampling for pesticides The previous orchard on
the site appears to have been dry farmed based on the significant natural
slope of the site, the lack of drainage conveyances and the agricultural
practices of the time, and it is unlikely that agricultural pesticides were used
in conjunction with dry farming Furthermore based on the history of
development on the site, there is documented significant grading and filling
of the eastern part of the property over 60 years ago and significant
disturbance and mixing of surface soil for the past 55 years on the western
portion of the Property.
The ERAS Review also indicated that the surrounding area was also used for
orchards and then developed for residential use by approximately 1960 (later
than the Project site itself), and nearly all the orchards and trees in the area
were removed by that time. According to this review, there have been no
documented environmental impacts or concerns related to past pesticide use
in the manv residences that surround the Project site, and ERAS dos not
consider there to be cause for concern that the Project development will
cause any impact to the environment as a result of past pesticide usage on
the Property or surrounding area.
The ERAS Review indicates that further testing is not suggested or required
by the DTSC Guidance document covering such properties. Therefore, this
additional information supports the 2007 conclusion in the ERIAS Phase 1
report, and ERAS continues to recommend no further testing at this time.
On March 29, 2011, the Los Gatos Community Development received a letter
from the Califomia Department of Toxic Substances Control (DTSQ, which
indicated that DTSC does not regulate normal application of agricultural
chemicals and will not require analysis of soil or groundwater at the Project
site The letter also noted that DTSC received the Final EIR with response to
their comment letter, and determined that the response was adequate.
EXHIBIT A
FEW Comment Letter from California Department of Toxic Substances Control on Draft EIR
Linda S. Adams
Secretary for
Environmental Protection
March 23, 2010
Maziar Movassaghi
Acting Director
700 Heinz Avenue
Berkeley, California 94710 -2721
Ms. Heather Bradley
Town of Los Gatos, Community Development Department
110 East Main Street
Los Gatos, California 95031
Dear Ms. Bradley:
LETTER 2
Arnold Schwarzenegger
Governor
Thank you for the opportunity to comment on the draft Environmental Impact Report (EIR) for
the Linda Court Residences (SCH# 2007032104). As you may be aware, The Department of
Toxic Substances Control (DTSC) oversees the cleanup of hazardous substance release sites
pursuant to the California Health and Safety Code, Division 20, Chapter 6.8. As a potential
Responsible Agency, DTSC is submitting the following comments to ensure that the California
Environmental Quality Act (CEQA) documentation prepared for this project and future
associated development projects adequately address any remediation activities which may be
required to address any hazardous substance releases.
2 -1 The Project consists of a Planned Development approval to construct 7 single - family homes
and demolish existing onsite structures. The Project would also include a change of the
zoning from R -1:8 to R -1:8 PD (Planned Development Overlay). The Project site was formerly
used for agricultural purposes until the mid 1970s and therefore pesticides and herbicides may
have been used. T [he Initial Study for this project referenced a Phase 1 Environmental Site
Assessment Report prepared by ERAS Environmental, Inc. in January 2007. The report
indicated that since these chemicals biodegrade over time and were not used after 1974, the
potential for these chemicals to occur on the site does not appear to be a significant
environmental concern. Pesticides and herbicides tend to be persistent in the environment
and do not significantly biodegrade over time. Therefore, there is a potential for these
chemicals to be present at the Project site. However, there may be other factors such as
residential development of the area that may have caused the concentrations of these
chemicals in soil to be lower (i.e., due to mixing of soil during grading activities). The level of
residual chemicals in the soil and /or groundwater is unknown unless an environmental
assessment is done. Therefore, DTSC recommends that soil, and possibly groundwater,
sampling be performed at this site for chemicals from past agricultural operations. The -
sampling results should be discussed in the EIR and any screening levels or criteria that are
used in making a determination whether detected contaminants are found at concentrations
that pose a risk to human health or the environment should be identified.
EXHIBIT A
Department of Toxic Substances Control
EXHIBIT A LETTER 2
Ms. Heather Bradley
March 23, 2010
Page 2
Please contact me at (510) 540 -3759 or by email at hchulQ7dtsc.ca.goy if you have any
questions. Thank you in advance for your consideration of our comments
Sincerely,
a
Henry Chui, P.E.,
Project Manager
Brownfields and Environmental Restoration Program
Enclosure
cc: without enclosure
Governor's Office of Planning and Research
State Clearinghouse
State. clearing houseCc opr.ca.00v
Nancy Ritter
CEQA Tracking Center
Department of Toxic Substances Control
nritter aadtsc.ca.gov
Alyssa De La Cruz
Department of Toxic Substances Control
ADelacrl ccDdtsc.ca.gov
EXHIBIT B
Review Letter from ERAS Environmental, Inc. Regarding Phase 1 Environmental Assessment
EXHIBIT B
ERAS
1533 B Street
Environmental, Inc.
Hayward, CA 94541
Phone (510) 247 -9885 Facsimile: (510) 886 -5399
April 13, 2011
Ms. Stephanie Strelow
Strelow Consulting
and
Heather Bradley
Town of Los Gatos
Subject:
PHASE I ENVIRONMENTAL SITE ASSESSMENT
15881 Linda Avenue
Los Gatos, California
ERAS Project Number 11046
Dear Ms. Strelow and Ms. Bradley:
info nmeras.biz
The following is with reference to the Phase I Environmental Site Assessment (ESA) project for the
subject property (the 'Property'�. The results of the ESA were presented in a report by ERAS
Environmental, Inc. (ERAS), dated January 9, 2007. We have now looked more closely at the DTSC
recommendations in light of the known history of the Property. The conclusion of the Phase I
study, that no f urther environmental testing is needed, remains and langed.
Conclusions of Phase 1 ESA
The previous ESA indicated that part of the Property was used as an orchard from prior to 1943
until approximately 1955. However, the Property also appeared to contain a residence in 1948 and
ERAS concluded it was unlikely the Property was still an operating orchard after the current
residential buildings were constructed on the Property in 1948.
ERAS indicated it had been almost 60 years since any pesticides would have been used — if they
were used at all at the Property. ERAS also concluded that pesticides would have affected, primarily
the upper surface and would have undergone significant degradation, through soil disturbance,
attenuation, dilution, biodegradation and other natural processes. In addition, there was no
indication from historical research that buildings where pesticides would have been stored were
located on the Property. ERAS concluded that based on the period of time since the Property was
agricultural land, and the degradation processes that had apparently occurred, there is unlikely to
be a risk to future occupants from residual pesticides in soil at the Property or to the environment
EXHIBIT B
15881 Linda Avenue
April 13, 2011
Page 2
as a result of the proposed development.
The entire area surrounding the site was also used for orchards, then developed for residential use
by approximately 1960 (later than the Property itself), and nearly all the orchards and trees in the
area were removed by that time. There have been no documented environmental impacts or
concerns related to past pesticide use in the many residences that surround the Property, there has
been no documented impact of past pesticide use on the current environment in the area, including
that on the Property, and ERAS does not consider there to be cause for concern that the
development project itself will cause any impact to the environment as a result of past pesticide
usage on the Property or in the surrounding area.
Purpose and Scope
The purpose of this letter is to respond to the concerns described in a letter from the California
Department of Toxic Substances Control (DTSC), dated March 23, 2010 which stated agricultural
pesticides are persistent in the environment and might still be present. DTSC recommended soil
and possibly groundwater sampling should be considered to determine whether chemicals from
past agricultural operations may impact future residents of the development.
Property Description
The Property is located along the south side of Ross Creek and north of the end of Linda Avenue in
the eastern portion of Los Gatos, California. It is currently designated as Santa Clara County
Assessor's parcel number 523 -25 -052 and contains an area of approximately 2.355 acres (10,584
square feet). Two residential structures are located on the southeastern portion of the Property
and the remainder of the Property consists of undeveloped mixed grassland and woodland that
slopes down toward Ross Creek.
Historical Summary
The Property was developed with orchards after 1919 and prior to 1943 and originally consisted of
two parcels, a western parcel and eastern parcel. The south approximately 1 /2 of the eastern parcel
was developed in 1948 with two residential buildings. Although residual orchard trees remained on
the eastern parcel, the change in ownership would likely have ended the use of the Property as a
commercial agricultural operation. Based on historical aerial photograph review, by 1956 the
western parcel had been cleared of trees and was open grassland. Subsequent aerial photographs
indicated the continued presence of a few residual orchard trees on the eastern portion of the
Property, none of which appeared to be of commercial use. Most of these photographs were
included in the ERAS Phase I Report.
Topographic Map Review
ERAS reviewed a 2006 topographic survey map for the proposed redevelopment prepared by
Westfall Engineers, Inc., and included in the development plans The topographic map indicates an
approximate elevation difference from the south to the north side of the Property of approximately
40 feet. This translates to a slope of up to approximately 22% along the western Property line.
This slope would exclude the possibility that the orchard was irrigated but would rather suggest that
it was dry farmed, as was common practice in Santa Clara Valley during that period.. Additionally,
15881 Linda Avenue
April 13, 2011
Page 3
EXHIBIT B
no physical drainages or irrigation water conveyance features were apparent on the 1948 and 1956
aerial photos. It appears therefore very likely the orchards formerly on the Property were dry
farmed.
In approximately the year 2000, DTSC developed guidance for sampling agricultural properties that
were being converted to schools to determine whether the past use of agricultural chemicals on
those properties pose a risk to during subsequent use as a'school. This guidance is now also
used to determine whether sites where suspected releases of agricultural chemicals have occurred
pose risk to future use of the land. According to the DTSC's Guidance for Sampling Agricultural
Properties, Section 2.3.2 refers to dry-land farmed agricultural soils as follows.
2.3.2 Dry Land Farmed Agricultural 5oi1s. Dry -land farming is the practice of growing a crop
without irrigation. Many dry -land farming fields are not treated with pesticides or infrequently
treated, since the lack of water does not provide a desirable habitat for most agricultural pests.
Properties that dearly qualify as dry -land farming do not need further investigation forpesticides or
metals.
DTSC does not consider the property to require further investigation, under the cited guidance or
any other DTSC laws or policies, including the Health and Safety Code.
Soil Grading and Disturbance
The eastern portion of the Property would have been significantly graded to accommodate the
residential development when these buildings were constructed in 1948. Two borings drilled by
Redwood Geotechnical Engineers in 2006 (B -1 and B -6) as part of the Soils Report project for the
proposed redevelopment encountered from 2 to 4.5 feet of fill on the eastern portion of the
Property verifying this area of the Property received significant fill material.
The western portion of the Property was cleared of trees and was open grassland from at least
1956, based on aerial photograph review. Therefore this part of the Property would have been
disturbed by the initial tree removal and on a regular basis since that time by disking operations
which have been required for weed control.
Based on DTSC's Guidelines for Sampling Agricultural Properties, Section 2.2, it appears the
Property is not covered by this guidance as follows.
2,2 Properties not covered by this Guidance. This guidance does not apply to former
agricultural property Mat has been graded for construction or otherpurposes, that has received fill,
or has had parking lots or structures placed on it following active use as an agricultural rield. An
urban residential area that was agricultural property in the past does not qualify for this guidance
since the construction of the residences would have resulted in the disturbance and redistribution of
potential agricultural contaminants in the soil.
Conclusions
The Property was part of orchard land from between 1919 and 1948 when it was redeveloped for
residential purposes. The previous orchard appears to have been dry farmed based on the
EXHIBIT B
15881 Linda Avenue
April 13, 2011
Page 4
significant natural slope of the Property, the lack of conveyances, and the agricultural practices of
the time, Based on the dry- farming of the former orchard it is unlikely agricultural pesticides were
used at the Property. Furthermore, based on the history of development, there is documented
significant grading and filling of the eastern part of the Property over 60 years ago and significant
disturbance and mixing of surface soil for the past 55 years on the western portion of the Property.
The entire surrounding residential area has undergone similar development of former orchards
without any documented impacts to health or the environment.
DTSC suggested that sampling be considered to further assess the potential risk of any agricultural
chemicals that may have been used. However, further, more detailed review by ERAS indicates that
further testing is not suggested or required by the DTSC Guidance document covering such
properties (or by any other DTSC policy or guidance of which we are aware). Therefore this
additional information supports the 2007 conclusion in the ERAS Phase 1 report and ERAS continues
to recommend no further testing at this time.
It has been a pleasure working with you on this project. Please call if you have any questions
regarding the Information in this letter or in the Phase I ESA report.
Respectfully, I i onme��
ER Environme tai, Inc. (m 4"
- KE'A4If 20,2001'
4 * . Expired rte'
s
David Siegel, R,E.A, II 20200 ki
Senior Program Manager
EXHIBIT C
201 1 Letter from Department of Toxic Substances Control
Linda S. Adams
Acting secretary for
Environmental Protection
March 29, 2011
Leonard E. Robinson
Acting Director
700 Heinz Avenue
Berkeley, California 94710 -2721
Ms. Heather Bradley
Town of Los Gatos, Community Development Department
110 East Main Street
Los Gatos, California 95031
Dear Ms. Bradley:
Edmund G. Brown Jr.
Governor
This letter provides clarification to our comment letter dated March 23, 2010 regarding
the draft Environmental Impact Report (EIR) for the Linda Court Residences (SCH#
2007032104). We understapd that the project site was formerly used for agricultural
purposes until the mid 1970s and pesticides and herbicides may have been used. The
Department of Toxic Substances Control (DTSC) had recommended that soil, and
possibly groundwater, sampling be done to determine whether the project site has been
impacted with agricultural chemicals. However, pursuant to the California Health and
Safety Code, section 25321(d), normal application of fertilizer, plant growth regulants,
and pesticides are not considered a "release ", therefore DTSC does not regulate normal
application of agricultural chemicals and will not require analysis of soil or groundwater
at this site.
DTSC received the Final EIR on July 22, 2010 and the response to our comment letter.
The response was adequate and we also received the certification of the Final EIR on
September 7, 2010.
Please contact Henry Chu! at (510) 540 -3759 or by email at hchuj dtsc.ca.gov if you
have any questions.
Sincerely,
- / -k � . - t A�
Mark E. Piros, P.E.
Unit Chief
Brownffelds and Environmental Restoration Program
EXHIBIT C
Department of Toxic Substances Control
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