April 19, 2021 SENT VIA EMAIL ([email protected])
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April 19, 2021 SENT VIA EMAIL ([email protected]) Mark Michelena, Senior Planner Butte County Development Services Department Planning Division 7 County Center Drive Oroville, CA 95965 RE: Comments on Mitigated Negative Declaration for Proposed Tentative Parcel Map TMP19-0002 Dear Mr. Michelena: This letter is submitted on behalf of the North Chico Neighborhood Safety Group (“NCNSG”) regarding the Mitigated Negative Declaration (“MND”) for the George Nicolas Tentative Parcel Map TMP19-0002 (“Project”). This group is working to address issues in North Chico relating to flood hazards and other quality of life issues for existing communities, including new development proposals that could worsen flooding, and cause other unmitigated environmental impacts. I. BACKGROUND The application to develop this parcel with four single-family homes was initially submitted in February 2019. Later that same month, the Autumn Park subdivision was flooded due to Keefer Slough overtopping its banks. Water rushed through Mr. Nicolaus’ orchard, and down the fire lane that borders Autumn Park, west of Garner Lane. From the fire lane, water rushed down Bosc Drive to Magness and Anjou Courts. Flood waters came within 15 feet of front doors, and were 4 feet deep. Mark Michelena April 19, 2021 Page 2 of 23 Flood waters from Keefer Slough flowing Flood waters flowing down fire lane on down Bosc Drive (2/14/19) south side of Nicolaus orchard (2/27/2019) Subsequent to the flooding, NCNSG wrote to the Butte County Board of Supervisors (“Board”) regarding its concerns with the regional flooding, outdated FEMA mapping and the two development proposals submitted by Mr. Nicolaus and his affiliates. (See Exhibit A, NCNSG Letter to the Board, dated December 4, 2019.) In early 2020, the Board considered imposing a temporary moratorium on certain development within the 100-year floodplain. NCNSG supported adoption of the temporary moratorium, given the flooding risks in the area. (See Exhibit B, NCNSG Letter to the Board, dated February 10, 2020.) At the request of NCNSG, MBK Engineers wrote to the Board, to explain that the parcel proposed for Tentative Parcel Map TMP19-0002 (among others) should be included in the moratorium area due to flooding risks. (Exhibit C.) Ultimately, instead of adopting a temporary moratorium, the Board directed staff to carry out nine measures to help address flooding and drainage concerns in North Chico. By November 2020, only one of the nine actions had been completed, leaving the region still at significant risk for future flooding. (Exhibit D.) This Project would convert portions of an existing orchard in an area subject to significant and chronic flooding to four (4) residential parcels. The development of these parcels would likely exacerbate local flooding, may lead to the release of untreated or partially-treated human waste from the septic systems when flooded, further stress the groundwater table, and pose safety risks due to inadequate emergency access, among other impacts. The proposed Project would result in potentially significant impacts that are inadequately disclosed and mitigated in the MND. As explained herein, the MND is inadequate under the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq. [“CEQA”]), and should not be adopted. The Planning Commission has issued a notice that it would consider approval of the Project on April 22, 2021. From the perspective of NCNSG, there has been Mark Michelena April 19, 2021 Page 3 of 23 inadequate time to fully review the proposed Project and the MND, and April 22 is too soon for a hearing on the Project. In the future, please provide this office notice of all actions on this Project. (See Pub. Resources Code, § 21092.2; Gov. Code, § 65092.) Should the Planning Commission proceed to consider the MND on April 22nd, NCNSG requests that the Planning Commission determine that the MND provides an inadequate basis upon which to make any decision, and require further review of the Project’s environmental impacts in a full Environmental Impact Report (“EIR”) in accordance with the minimum requirements of CEQA. II. THE MND DOES NOT MEET MINIMUM CEQA STANDARDS The MND is entirely inadequate to support approval of the Project. Preparation of a full environmental impact report (“EIR”) is required prior to any action being taken on the Project. A. Standards Applicable to Mitigated Negative Declarations The MND fails to include relevant information and fully disclose Project impacts as required by CEQA. In particular, several potentially significant impacts are associated with the Project, necessitating preparation and circulation of an EIR prior to any further proceedings by the City regarding the Project. Under CEQA, an EIR is required whenever substantial evidence supports a “fair argument” that a proposed project may have a significant effect on the environment, even when other evidence supports a contrary conclusion. (See, e.g., No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 74 [No Oil I].) This “fair argument” standard creates a “low threshold” for requiring the preparation of an EIR. (Citizens Action to Serve All Students v. Thornley (1990) 222 Cal.App.3d 748, 754.) Thus, a project need not have an “important or momentous effect of semi-permanent duration” to require an EIR. (No Oil I, supra, 13 Cal.3d at 87.) Rather, an agency must prepare an EIR “whenever it perceives some substantial evidence that a project may have a significant effect environmentally.” (Id. at p. 85.) An EIR is required even if a different conclusion may also be supported by evidence. The fair argument test is the least deferential to the lead agency; importantly, “substantial evidence in the record supporting a fair argument” is not the same as the deferential “substantial evidence” standard applicable to the adequacy of EIRs. (No Oil I, supra, 13 Cal.3d at 82–87.) The fair argument test is a question of law, not fact, and the courts owe no deference to the lead agency’s determination. Review is de novo, with a preference for resolving doubts in favor of environmental review. (Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, 927 [Pocket Protectors].) Mark Michelena April 19, 2021 Page 4 of 23 To lawfully carry out a project based on an MND, a CEQA lead agency must approve mitigation measures sufficient to reduce potentially significant impacts “to a point where clearly no significant effects would occur.” (Cal. Code Regs. Tit. 14 [“CEQA Guidelines”], § 15070, subd. (b)(1), emphasis added.)1 This is assured by incorporation into a Mitigation Monitoring and Reporting Plan (“MMRP”). (Pub. Resources, Code, § 21081.6(a)(1).) “The purpose of these requirements is to ensure that feasible mitigation measures will actually be implemented as a condition of development, and not merely adopted and then neglected or disregarded.” (Federation of Hillside & Canyon v. City of Los Angeles (2000) 83 Cal.App.4th 1252, 1261.) Furthermore, an agency cannot hide behind its own failure to gather relevant data. Specifically, “deficiencies in the record [such as a deficient initial study] may actually enlarge the scope of fair argument by lending a logical plausibility to a wider range of inferences.” (Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 311 [Sundstrom].) For example, in Sundstrom, the court held that the absence of information explaining why no alternative sludge disposal site is available “permits the reasonable inference that sludge disposal presents a material environmental impact.” (Ibid.) Substantial evidence of a fair argument may come in various forms. Comments from experts presenting evidence that significant impacts may occur is generally considered to be substantial evidence. (See Sierra Club v. California Dept. of Forestry (2007) 150 Cal.App.4th 370; see also City of Livermore v. Local Agency Formation Comm’n (1986) 184 Cal.App.3d 531, 541.) Opinions, based on relevant expertise, that a project could have significant effects also qualifies as substantial evidence of a fair argument. (See County Sanitation Dist. No. 2 v. County of Kern (2005) 127 Cal.App.4th 1544, 1582–1587 [expert predictions by three separate “sludge generators” constituted a fair argument that the project would have significant environmental effects] [County Sanitation Dist. No. 2]; Pocket Protectors, supra, 124 Cal.App.4th at 34 [planning 1 A lead agency may satisfy its CEQA obligations by preparing an MND instead of an EIR if: (1) revisions in the project would mitigate the effects of the proposed project to a point “where clearly no significant effects on the environment will occur, and (2) there is no substantial evidence in light of the whole record before the public agency that the project, as revised, may have a significant effect on the environment.” (Pub. Resources Code, § 21064.5.) The City must also adopt a legally adequate MMRP in compliance with CEQA. (CEQA Guidelines, § 15074, subd. (d).) To comply with CEQA the MMRP “shall be designed to ensure compliance during project implementation.” (Pub. Resources Code, § 21081.6, subd. (a)(1); CEQA Guidelines, §§ 15074, subd. (d), 15097, subd. (a).) The City may not simply rely on a “summary” that merely relists the various mitigation measures in the absence of a discussion of implementation or evidence that the measures will be enforced. Mark Michelena April 19, 2021 Page 5 of 23 commission’s findings of fact and testimony of an architect regarding project consistency with applicable land use policies constituted fair argument of significant environmental effects].) Substantial evidence can also come in the form of public comments, so long as such comments are based on personal observations on nontechnical subjects. (Id. at 937– 39 [personal observations by area residents constitute evidence of a fair argument of significant aesthetic impacts].) For each resource area discussed below, there is substantial evidence supporting a fair argument of a potentially significant impact.