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 13 of 14 yet been approved, the traffic analysis prepared for the Project was required to use the VMT methodology, and therefore, the City's conclusions about the Project's traffic impacts are not supported by substantial evidence. X. THE CITY MUST PREPARE AN EIR BECAUSE THE MEMU EIR ADMITS SIGNIFICANT AND UNAVOIDABLE ENVIRONMENTAL IMPACTS. An EIR must be prepared for the Project because the MEMU EIR determined that the MEMU Project would cause significant and unavoidable impacts on air quality, noise, transportation and traffic, and cultural resources. In the case of Communities for a Better Environment v. Cal. Resources Agency (2002) 103 Cal.AppAth 98, 122-125 (disapproved on other grounds by Berkeley Hillside Pres. v. City of Berkeley (2015) 60 CalAth 1086), the court of appeal held that when a "first tier" EIR admits a significant, unavoidable environmental impact, then the agency must prepare second tier EIRs for later projects to ensure that those unmitigated impacts are "mitigated or avoided." (ld. citing CEQA Guidelines §15152(f).) The court reasoned that the unmitigated impacts was not "adequately addressed" in the first tier EIR since it was not "mitigated or avoided." (ld.) Thus, significant effects disclosed in first tier EIRs will trigger second tier EIRs unless such effects have been "adequately addressed," in a way that ensures the effects will be "mitigated or avoided." (Id.) Such a second tier EIR is required, even if the impact still cannot be fully mitigated and a statement of overriding considerations will be required. The court explained, "The requirement of a statement of overriding considerations is central to CEQA's role as a public accountability statute; it requires public officials, in approving environmental detrimental projects, to justify their decisions based on counterbalancing social, economic or other benefits, and to point to substantial evidence in support." (ld. at 124-125.) The court specifically rejected a prior version of the CEQA guidelines regarding tiering that would have allowed a statement of overriding considerations for a program -level project to be used for a later specific project within that program. (Id. at 124.) Even though "a prior EIR's analysis of environmental effects may be subject to being incorporated in a later EIR for a later, more specific project, the responsible public officials must still go on the record and explain specifically why they are approving the later project despite its significant unavoidable impacts." (Id. at 124-25.) Since the MEMU EIR admitted numerous significant, unmitigated impacts, a second tier EIR is now required to determine if mitigation measures can now be imposed to reduce or eliminate those impacts. If the impacts still remain significant and unavoidable, a statement of overriding considerations will be required. XI. CONCLUSION For the above reasons, SAFER respectfully requests the Planning Commission decline to approve the Project, and instead direct Planning Staff to prepare and circulate an Project -level EIR for public review. SAFER preserves its right to make additional comments on the Project.