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 12 of 14 glass walls. Id. "The depictions in the Staff Report include additional contributing collision hazards such as large transparent glass panels, interior lighting, nearby trees, and entrapment spaces interior to the building structures." Id. Since the 2007 MEMU EIR and 2018 MEMU SEIR failed to analyze the Project's impacts to birds due to collisions with windows, Dr. Smallwood reviewed numerous studies, several published after the certification of both EIRs, that averaged 0.073 bird deaths per m2 of glass per year to calculate the Project's impacts to birds. See id., p. 8. Dr. Smallwood estimated the Project would include at least 17,991 m2 of glass panels, which would result in approximately 1,315 bird deaths per year. Id. As Dr. Smallwood states, reports of scientific investigations published since the 2007 MEMU EIR and 2018 MEMU SEIR have informed the scientific community of the magnitude of impacts on North American birds, of the factors contributing to bird -window collisions, and how to mitigate collision risk. Id., p. 9. Further, guidance on how to design buildings and reduce the collision hazards of glass were also produced since the 2007 MEMU EIR. Id. These new reports and guidance documents provide new information of substantial importance. Based on this information, Dr. Smallwood's analysis provides substantial evidence of a new significant impact that was not known and could not have been known at the time the 2007 MEMU EIR and 2018 MEMU SEIR were certified, and therefore a project -level EIR is required. VIII. THE CITY'S CONCLUSIONS ABOUT THE PROJECT'S HAZARDS AND HAZARDOUS MATERIALS ARE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE. The MEMU EIR MMRP requires that, prior to issuance of grading permits on any project site, the developer shall "[i]nvestigate the project site to determine whether it or immediately adjacent areas have a record of hazardous materials contamination via the preparation of a preliminary environmental site assessment (ESA)." MM-OZ 4.6-2. However, not only is this analysis improperly deferred under CEQA, but the MEMU EIR nor the Staff Report prepared for the Project contained a Phase 1 ESA for the Project site. Therefore, an EIR needs to be prepared to include a Phase 1 ESA for the Project site. See Ex. A, pp. 1-2. Additionally, without a Phase 1 ESA prepared for the Project, the City's assertion that the Project's environmental effects were already analyzed in the MEMU EIR are therefore not supported by substantial evidence. IX. THE CITY'S CONCLUSIONS ABOUT THE PROJECT'S TRAFFIC IMPACTS ARE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE. The MEMU EIR Mitigation Monitoring and Reporting Program ("MMRP") requires that separate traffic studies specific to individual proposed projects must be prepared. See MM-OZ 4.12-2. On July 30, 2020, Linscott Law & Greenspan Engineers prepared a traffic analysis report for the Project, using the Level of Service ("LOS") methodology. See October 26, 2020 Staff Report, p. 1-121. However, Senate Bill 743 ("SB-743") amended CEQA to require calculation and estimates of vehicle miles traveled ("VMT") for all development projects approved in California after July 1, 2020. Since the Project has not