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City of Santa Ana— First American Mixed -Use Project [114 and 117 East Fifth Street] — Comments to City Council <br />November 18, 2019 <br />Page 7 of 13 <br />supplemental EIR rather than an Addendum, which again can only be used to make <br />minor modifications or additions. See 14 Cal. Code Regs. §15164. <br />The City must prepare a project -specific EIR and circulate it for public comment <br />before it could contemplate approving the Project. <br />C. The Addendum Provides Unenforceable Transportation/Circulation <br />Mitigation Measures <br />The Addendum admits that "two [transportation/circulation] mitigations require the <br />approval/cooperation of the California Department of Transportation (Caltrans)." <br />Addendum, p. 3.8-1. The Addendum cites to Mitigation 4.11-4 of the 2010 FEIR but <br />does not even cite to the second mitigation measure which required Caltrans' approval <br />for implementation. <br />CEQA requires that mitigation measures must be an enforceable condition of approval <br />and part of the Mitigation Measure Reporting Program ("MMRP"). A lead or <br />responsible agency adopts mitigation measures described in the EIR when it approves <br />the project. The mitigation measures that are adopted must be enforceable through <br />conditions of approval, contracts or other means that are legally binding. Pub Res C <br />§21081.6(b); 14 Cal Code Regs §15126.4(a)(2). Incorporating mitigation measures into <br />conditions of approval is sufficient to demonstrate that the measures are enforceable. <br />Pub Res C §21081.6(b); Gray v County of Madera (2008) 167 Cal.AppAth 1099, 1116. <br />Contrary to CEQA requirements, the mitigation measures are not enforceable because <br />the mitigation measures require discretionary action by another, independent agency, <br />Caltrans. As a result, they cannot be used to support a conclusion that the Project's <br />transportation/circulation impacts would be reduced to a less than significant level. <br />See Addendum, p. 2-7. <br />D. The Addendum Fails to Adequately Analyze, Disclose and Mitigate the <br />Project's Significant Air Quality Impacts <br />According to Mr. Hagemann and Mr. Rosenfeld, the Addendum failed to adequately <br />analyze the Project's air quality impacts based on various grounds, which are explained <br />in full in their comment letter, which is attached hereto as Exhibit C, and <br />accompanying exhibits. Those points are briefly summarized below. <br />