Comments on EIR:

Friedman, Barry

Grant, Pat

Hendricks, Glenn

Skewes-Cox, Amy

Henson, Alexander

Whittum, David

Comments about MAEP

Boehm, Jan

Staats, Debbie

Yeager, Don

Yeager, Jeanne

 is your most complete source of information on the City of Sunnyvale, CA,  proposed Mary Avenue Extension (MAE) (Bridge, Overpass, whatever), its Environmental Impact Report (EIR) and the litigation seeking to decertify the EIR. Home 

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MAE -- The Project and EIR's in General Comments about the EIR Comments about the MAEP City Council Meeting 10/28/08 and start of Litigation The Litigation Continued (Under Construction)



Henson, Alexander (Attorney)





TELEPHONE (831) 659-4100

FAX NO. (831)659-4101



October 24, 2008

City of Sunnyvale City Council

456 W. Olive Ave.

Sunnyvale, CA 94088

Re: Approval of Mary Avenue Extension

Honorable Mayor Spitaleri, Vice Mayor Hamilton and Council Members:

This letter is submitted on behalf of the Sunnyvale West Neighborhood Association which opposes the approval of the Mary Avenue Extension. They object to the failure of the City to prepare and consider a full disclosure of the environmental impacts of the proposed project prior to considering approval of the project.

Any objective review of the Environmental Impact Report (EIR) prepared allegedly pursuant to the California Environmental Quality Act (CEQA), Public Resources Code Section 21000 et seq, for the Mary Avenue Extension, discloses that it makes an unsupportable assumption, it misnses the 'baseline" for any adequate environmental analysis, it fails to include a necessary mitigation measures required by law, it contains information contrary to that provided in staff reports, and it fails to even mention the effects of elevating a flow of traffic 50 feet above the surrounding terrain.  

The two most glaring defects in the EIR are the assertion that since the extension only accommodates traffic, it does not itself generate any traffic, and the assertion that the proper baseline for determining the environmental impacts of the project is 2020.  

The assertion that traffic capacity increases do not cause increases in traffic was rejected by the Court in City of Antioch v. City Council of the City ofPittsburg (1986) 187 Cal.App.3d 1325, 1337. The EIR herein persistently refuses to acknowledge that construction of increased roadway capacity will "permit", "cause", "facilitate", "accommodate", an increase in traffic on Mary Avenue. The fact is this extension is designed to increase the traffic on Mary Avenue to alleviate traffic on other north-south thoroughfares. The EIR states "the proposed project would not change overall traffic volumes in the area. Instead, because the project consists of a new north-south roadway connection, its primary effect will be to change the traffic distribution in the area." EIR, p.47.

This is not true. The primary effect will be to increase traffic on Mary Avenue. That is what the project is designed to do. Secondary effects include increasing the             - ------------

October 24, 2008 Page 2

regional traffic capacity, and perhaps, but not necessarily, reducing traffic elsewhere. To the extent this project increases traffic capacity, it allows more cars to travel into Moffett Park. It is a matter of simple logic that if the project enables the build-out of the Moffett Park Specific Plan, then without the project, the build-out would have to be curtailed. If the build-out would be curtailed without the project, then the project enables that traffic that could otherwise have to be deferred. Only if build-out could proceed without this project could it be said this proposal would not generate traffic. Of course, why would the project be proposed if it was not necessary to enable the build-out of the Specific Plan area?  

As a matter of law the EIR assertion, which is never supported with any citations to anything other than the author's opinion, compare DEIR, p. 47, that a project which expands traffic capacity does not result in any increase in traffic, is wrong. That assumption cannot be used to avoid doing the requisite analysis of the environmental impacts arising from an increase in traffic capacity. Friends of "B" Street v. City of Hayward (1980) 106 Cal.App.3d 988, 1003 [Court found substantial evidence that long term effect of increase in roadway capacity was increased traffic.]

The next glaring failure of the EIR is its use of a baseline of 2020 to measure the effects of the project to determine whether the project might have any significant adverse environmental impacts now. See EIR, Table 2.0-6, Figure 2.0-3, 2.0-4, Table 2.0-7 This is ludicrous and contrary to law. The CEQA Guideline Section 15125 states, "An EIR must include a description of the physical conditions in the vicinity of the project as they exist at the time the Notice of Preparation is published...from both a local and regional perspective. This environmental setting will normally constitute the baseline physical conditions by which a lead agency determines whether an impact is significant." (Emphasis added)  

Instead of comparing traffic flows of 2006 or 2007, with the project and without the project, the EIR compares traffic flows of 2020 with and without the project. This is absurd. The reason given that the project may not be available before then, is belied by the Staff Report prepared for the City Council meeting of October 28, 2008, which indicates the project could be built within 3 to 5 years, depending upon funding.  

Curiously, in a table presented to the peer review consultant, Amy Skewes-Cox, there is a presentation of the anticipated traffic based upon the existing baseline plus the project. See enclosed Table. This shows what really can be expected when the project is completed. Traffic on Mary north of Maude will double or more. Regrettably this table was not included in the EIR, nor is the relevant information comparing the baseline with the baseline + project presented anywhere in the EIR. What some public official may know, but which is not included in the EIR, will not be considered as part of the EIR. Environmental Defense Fund Inc. v. Coastside County Water Dist. (1972) 27 Cal.App.3d 695, 706. The failure to include this information in the EIR makes it inadequate to fulfill its duty of fully disclosing the impacts of the project.

October 24, 2008 Page 3

Skewing the baseline is one of the most common ways to avoid having to present the true impacts of a project. This author has been involved in several such cases. See e.g. Save Our Peninsula Committee v. Monterey County Bd. Of Supervisors (2001) 87 Ca1.App.4th 99. The Courts have routinely held that in assessing a project's impacts, "agencies should compare project impacts against the existing environment, rather than some hypothetical, impacted future environment that might occur without the project under existing general plan and/or zoning designations." Remy & Thomas, Guide To The California Environmental Quality Act, (1999) p.165. Compare Christward Ministry v. Superior Court (1986) 184 Cal.App.3d 180, 186-187.

In this case the EIR asserts "Twice as many vehicles per hour means twice the sound energy, resulting in a 3 decibel increase, and a just noticeable increase in loudness." DEIR, p.56. The DEIR also states the City's General Plan finds an increase of sound of more than 3 dba is "substantial". DEIR, p.59. Since the segments of Mary Avenue north of Maude will experience traffic increases of double or more as a result of the project, see attached table, the sound increases as a result of the project will at least have a "noticeable increase in loudness" for these roadway segments.

The analysis of noise level impacts is hidden by the use in the EIR of the 2020 baseline. Instead of acknowledging the foregoing analysis, the EIR uses the 2020 baseline to state, "The proposed project, therefore, would be responsible for a traffic noise level increase by less than one dBA Ldn above the noise levels expected as a result of General Plan build-out. " DEIR p.62 (Emphasis added.)

Since there is no comparison of the baseline noise levels and baseline with project noise levels, the analysis does not disclose the impacts of the project on the existing traffic noise level. The EIR is therefore legally inadequate.

The same problem arises in discussing the air quality impacts. Since there is no discussion of current baseline traffic plus project traffic, there is no discussion of air quality impacts from the project traffic. Besides never addressing the project's increase in traffic, and thus air pollution, the EIR discussion gives generalities without ever giving specifics as to those roadway segments most impacted by increased traffic from the project. The EIR refuses to acknowledge that an increase in traffic will be accompanied by a localized increase in air pollution.

Another defect of the EIR is the failure to include the mitigation measure of improving the intersection of Maude and Mary. While the EIR identifies the improvement of the intersection to avoid the intersection traffic flow to drop to LOS E, DEIR p.52, there is no mention of this mitigation measure being part of the project. Compare draft Resolution submitted with Staff Report. Since a drop in LOS to "E" on a City street intersection would be a significant adverse environmental impact, the mitigation measure to avoid that impact must be adopted as part of the project. Otherwise the City cannot make the findings required by Public Resources  Code Section 21081(a)(1).

October 24, 2008 Page 4

It is suspected the mitigation measure was not included because it will not be needed for many years. However, the use of the 2020 baseline skewed the timeline. The EIR fails to state when the improvement to the Mary Avenue/Maude intersection will be needed. But since it will be needed to avoid the project from causing a significant adverse environmental impact, it must be included as >part of the project approval. CEQA Guideline Section 15126.4(a)(2) Since it is not included as a condition of the project, the project cannot lawfully be approved under CEQA.

Another failing of the EIR is the failure to address the environmental impacts of constructing the roadway 50 feet above the surrounding terrain. As depicted in Figure 1.0-5, the roadway will be at 80 feet above sea level, 50 feet above ground level, for some 500 feet, Further, traffic traversing the extension will have headlights flashing across the night sky and into the airplane approach corridor for Moffett Field as they approach the crest of the bridge. This increase in nighttime lighting is dismissed in the EIR with the statement that due to the existing light and glare from industrial uses, roadways and freeways, the increase would not be substantial. DEIR, p.34. This is followed by the assertion that no sensitive land uses (e.g. residential uses) are located in the project vicinity that could be impacted from the light and glare from the project. Id.  

This discussion fails to note whether headlights from traffic will flash into the night sky due to the angle of the roadway near the crest of the bridge. The discussion fails to note this light source will be 25 feet above State Route 237. The statement that there are no residential uses in the project vicinity is misleading. Does the EIR mean to state that no residential units will be able to see the Mary Avenue Extension? Or that none will be able to detect any additional glare? Without this information the .15pt">EIR's assertions are misleading. Further, it would seem airplanes approaching Moffett Field at night would be a sensitive land use potentially affected by the glare, particularly from flashing headlights shining into the aircraft approach corridor for Moffett Field.  

For each of the foregoing reasons the EIR is legally inadequate and cannot be used at this time to support the City Council's approval of the Mary Avenue Extension. Since the wrong baseline was used, along with an unacceptable assumption concerning the effects of increasing traffic capacity, a Supplemental EIR will not correct these deficiencies. Most of the analysis would be presented for the first time, without the opportunity for review by the public and a response to their concerns set out. It is therefore necessary to do the proper analysis and commence anew with a draft FIR