Item 27 - Appeal Application Nos. 2020-03 and 2020-04 - Central Pointe Mixed-Use Development

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Central Pointe Mixed -Use Development Project November 9, 2020 Page 11 of 14 VII. THERE IS SUBSTANTIAL EVIDENCE OF NEW INFORMATION OF SUBSTANTIAL IMPORTANCE, WHICH WAS NOT KNOWN AND COULD NOT HAVE BEEN KNOWN WITH THE EXERCISE OF REASONABLE DILIGENCE AT THE TIME THE MEMU EIR WAS CERTIFIED AS COMPLETE SHOWING THE PROJECT WILL HAVE A SIGNIFICANT IMPACT ON BIOLOGICAL RESOURCES THAT WAS NOT DISCUSSED IN THE MEMU EIR. Ecologist Shawn Smallwood, Ph.D., conducted a review of the proposed Project and relevant documents regarding the Project's impacts on biological resources. Shawn Smallwood Comments (November 5, 2020) (Exhibit C). The MEMU EIR explicitly did not analyze impacts to birds from collisions with windows. As Dr. Smallwood notes, the only window issue addressed was potential glare, to which the 2007 MEMU EIR specified "[p]roposed new structures shall be designed to maximize the use of textured or other nonreflective exterior surfaces and non -reflective glass. See 2007 MEMU EIR, p. i-5. The only mitigation measures formulated to minimize bird impacts included preconstruction surveys for nesting birds, timing of tree removals to avoid the nesting season, and carefu use of construction vehicles. See MM-OZ 4.3-1. However, as Dr. Smallwood explains, substantial evidence of new information of substantial importance, which was not known and could not have been known with the exercise of reasonable diligence at the time the 2007 MEMU EIR and 2018 MEMU SEIR were certified as complete shows the Project may have a significant impact on biological resources that was not discussed in the MEMU EIR. Since the 2007 MEMU EIR and 2019 MEMU SEIR, ornithologists learned that North American bird abundance declined 29% over the last 48 years (Rosenberg et al. 2019). Ex. C, p. 2. In response to this new circumstance — whether directly or indirectly, Governor Newsom signed AB 454 into law on September 27, 2019. Id. This new law amended California Fish and Game Code section 3513 to further protect birds addressed by the federal Migratory Bird Treaty Act, and carries particular significance for the impacts of window collisions that the Project would have on birds. Id. Not only do all native migratory birds now have additional protections of California's Migratory Bird Treaty Act, but at least 44 special -status species of birds are known to the Project area. Id. Thanks to a study released this year, we know also know that 21 of these special -status species have been documented as window collision fatalities and are therefore susceptible to new structural glass installations. Id; see also Basilio et al. 2020. Many more species newly protected by AB 454 have also been documented as window collision victims. Id. Recent advances in structural glass engineering have contributed to a proliferation of glass windows on building facades, which is readily observable in newer buildings and in recent project planning documents, and is represented by a worldwide 20% increase in glass manufacturing for building construction since 2016. Ex C., p. 5. As Dr. Smallwood observes, glass is also a prominent feature of the Project, and Dr. Smallwood estimates that greater than 70% of facades could be composed of glass, including glass railings and