Item 23 - Appeal Application Nos. 2020-03 and 2020-04 — Central Pointe Mixed-Use Development

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Appeal Application Nos. 2020-03 and 2020-04 — Central Pointe Mixed -Use Development January 19, 2021 Page 9 SAFER contradicts its assertion that this is a new issue that could not have been raised prior to the certification of the MEMU EIR. Dr. Smallwood's own letter indicates that window collisions have been known to be one of the largest sources of human -caused bird mortality for years, and cites numerous studies attempting to quantity such fatalities going back to 1976. Thus, this alleged impact could have been raised prior to the certification of the MEMU EIR, and clearly does not trigger the need for further analysis under CEQA Guidelines Section 15162. d. SAFER asserts potential impacts related to hazardous materials are not mitigated. Staff Response — SAFER notes that the MEMU EIR Mitigation Monitoring and Reporting Program (MMRP) requires that the Project site be investigated for evidence of hazardous materials contamination "prior to issuance of grading permits," and argues that such measure improperly defers mitigation. But again, it is too late to challenge the adequacy of the analysis done in the MEMU EIR or the sufficiency of the mitigation measures adopted when the Overlay was approved. Moreover, SAFER has not identified any evidence that hazardous materials are present on the site, and even when contamination is known to exist, there is nothing improper about a mitigation measure that requires such contamination be investigated and remediated after project approval. e. SAFER attests that a VMT analysis is required for the Project. Staff Response — CEQA Guidelines Section 15007, states that "amendments to the guidelines apply prospectively only," and that "if a document meets the content requirements in effect when the document is set out for public review, the document does not need to be revised to conform to any new content requirements in Guideline amendments taking effect before the document is finally approved." Thus, under the Guidelines, any EIR that was publicly circulated prior the City's adoption of VMT analysis in 2019 — like the MEMU EIR — is not required to include the VMT analysis now mandated by Section 15064.3. Moreover, this determination is consistent with longstanding case law where the court said a responsible agency was not required to prepare a supplemental EIR to comply with a new statute requiring additional traffic analysis, noting "fairness and the need for finality" require that the adequacy of an EIR "be measured against those regulations in effect" when the EIR was presented for public review. (Long Beach Savings & Loan Assn v. Long Beach Redevelopment Agency (1986) 188 Cal. App. 3d 250, 261 n.12.) As discussed above, the MEMU EIR was not only publicly circulated, but certified long before the VMT requirements took effect. Accordingly, the VMT requirements are inapplicable.