TO: PLANNING COMMINSSION

FROM: JAYNI ALLSEP, ENVIRONMENTAL COORDINATORCONTRACT PLANNER

SCOTT ANDERSON, COMMUNITY DEVEL. DIRECTOR

ANN DANFORTH, TOWN ATTORNEY

SUBJECT: FILE #30003: ADEQUACY REVIEW OF THE DRAFT ENVIRONMENTAL IMPACT REPORT FOR THE TIBURON GLEN PRECISE DEVELOPMENT PLAN (PD #22) TO CREATE EIGHT BUILDING SITES ON A 26.03 ACRE PARCEL; 3700 BLOCK OF PARADISE DRIVE NEAR NORMAN WAY; XANADU PROPERTY HOLDINGS, INC., OWNERS; ASSESSOR’S PARCEL NO. 39-241-01

MTG. DATE: NOVEMBER 13, 2002 REVIEWED BY: SA

PROJECT DATA

Address: Vicinity of 3700 Block of Paradise Drive

Assessor’s Parcel Number: 39-241-01

File Number: 30003

General Plan: Low Density Residential

Zoning: RPD (Residential Planned Development)

Current Use: Vacant

Owners: Xanadu Property Holdings, Inc.

Applicant: Tom Newton, Planning Advisory Corporation

Date Complete: February 15, 2001

An application has been filed by Xanadu Property Holdings, Inc. has applied for a Precise Development Plan for development of a 26.03-acre parcel into eight (8) single-family residential lots. The project site is located on the northeast side of the Tiburon Peninsula in the Town of Tiburon. The irregularly shaped parcel is situated on the southwest (upslope) side of Paradise Drive and wraps around the existing Norman Estates neighborhood.

The Town has prepared a A Draft Environmental Impact Report (DEIR) has been prepared for this project. Town staff and circulated the DEIR for the required 45-day public review and comment period, which concluded on October 14, 2002. We have received a A total of 34 comment letters on the DEIR have been received from agencies or individuals. In addition, on October 9, 2002, the Planning Commission held a meeting was held before the Planning Commission to receive verbal comments on the DEIR. Exhibit 1 to this report is anAn index of all of the comment letters received is attached as Exhibit 1 of this report. Exhibit 2 contains Lletters received after the October 9, 2002 Planning Commission meeting are included as Exhibit 2. Approved minutes from the October 9, 2002 Planning Commission meeting are attached as Exhibit 3.

Comments on the DEIR focus on the following topics:

Grading, landslide repair and secondary impacts

Tree removal/ Sudden Oak Death (SOD)

Sanitary Sewer Service

Traffic/bicycle safety

Visual Impacts

Compatibility of proposed project with existing neighborhood

Cumulative Impacts

The Planning Commission should be aware that this project is the subject of a Court Order, Issued on October 11, 2002. In response to a petition filed by the developer, the court ordered the Town to certify the project’s EIR by March 1, 2003. Accordingly, the Town should avoid any unnecessary delays in completing the environmental review of the project. The Town Attorney will be available at the meeting to answer any questions the Commission may have regarding the litigation and court order.

The purpose of this meeting is set forth in the Tiburon Environmental Review Guidelines as follows:

The advisory body (or if there is none, the decision-making body) shall hold a public meeting, at which it shall hear and consider the recommendation of the Environmental Coordinator as to whether "significant new information" that would require recirculation has been received during the public comment period. If not, then the Final EIR shall be completed and released. For purposes of this section, "significant new information" shall mean information that requires recirculation under the applicable CEQA Guidelines.

If recirculation is required pursuant to [the above], the recirculation process shall commence in accordance with the CEQA Guidelines.

The applicant shall be notified of the decision to require recirculation of the Draft EIR immediately. Any necessary information required of the applicant to complete the Draft EIR in conformance with CEQA shall be provided as expeditiously as possible.

Any decision by an advisory body regarding recirculation of the Draft EIR is appealable to the Town Council within five (5) days of the decision. Said appeal shall be heard at the next feasible Town Council meeting, notwithstanding any adopted Town policies or regulations concerning appeals to the contrary.

The purpose of this public hearing is to assess the adequacy of the DEIR. In accordance with the Town of Tiburon Environmental Review Guidelines (adopted 2/6/91), upon completion of the public hearing, the Planning Commission shall either accept the Draft EIR, if it is determined to be in conformance with State CEQA Guidelines and the Town’s Environmental Review Guidelines, or move continuance of the hearing pending receipt of additional information necessary to achieve such conformance. Upon a determination that recirculation is not required, cceptance of the Draft EIR, the Final EIR, which will include responses to comments received on the Draft EIR, will be prepared and released. The Planning Commission will then hold at least onesubsequent public hearings on the Final EIR and the merits of the project application. The Planning Commission action on both the Final EIR and the project merits will be in the form of a recommendation to the Town Council.

RECIRCULATION ISSUEADEQUACY OF THE DRAFT EIR

It is Staff’s opinion that the DEIR has been prepared in conformance with the standards for adequacy contained in the CEQA Guidelines. Section 15151 of the CEQA Guidelines, Guidelines which statesprovides the following:

"An EIR should be prepared with a sufficient degree of analysis to provide decisionmakers with information which enables them to make a decision which intelligently takes account of environmental consequences. An evaluation of the environmental effects of a proposed project need not be exhaustive, but the sufficiency of an EIR is to be reviewed in light of what is reasonably feasible. Disagreement among experts does not make an EIR inadequate, but the EIR should summarize the main points of disagreement among the experts. The courts have looked not for perfection but for adequacy, completeness, and a good faith effort at full disclosure."

Town Staff and the EIR consultants have reviewed the comments received during the public review period, and we are prepared to address each of the comments in the Final EIR as required by CEQA. Many of the comments challenge the adequacy of the DEIR, especially with regard to the analysis of impacts associated with the repair of landslides in accordance with Town’s policy regarding landslide repair. To address these comments, additional information will be provided in the Final EIR that will clarify the extent of grading and the landslide repair techniques that must be employed. However, Staff does not expect that the additional information will be "significant new information" that would require recirculation of the DEIR.

According to the Section 15088.5 (b) of the CEQA Guidelines, "Recirculation is not required where the new information added to the EIR merely clarifies or amplifies or makes insignificant modifications in an adequate EIR." The CEQA Guidelines also stipulate that new information added to the EIR is not significant unless the EIR is changed in a way that deprives the public of a meaningful opportunity to comment upon a substantial adverse environmental effect of the project or a feasible way to mitigate or avoid such an effect (including a feasible project alternative) that the project’s proponents have declined to implement.

ConverselyMore specifically, Section 15088.5(a) of the CEQA Guidelines states that "significant new information" requiring recirculation include, for example, a disclosureincludes information showing that:

A new significant environmental impact would result from the project or from a new mitigation measure proposed to be implemented.

A substantial increase in the severity of an environmental impact would result unless mitigation measures are adopted that reduce the impact to a level of insignificance.

A feasible project alternative or mitigation measure considerably different from others previously analyzed would clearly lessen the significant environmental impacts of the project, but the project proponents decline to adopt it.

The draft EIR was so fundamentally and basically inadequate and conclusory in nature that meaningful public review and comment were precluded.

Staff does not believe that the information that will be added to the DEIR to create the Final EIR will meet the above recirculation thresholds. Although the DEIR does not specify the precise amount and extent of grading that would be required was not specified, the DEIR identifies the performance standards stipulated by the Town’s policy on the repair of landslides, and identifies a number of landslide repair and stabilization measures that would mitigate the impact. At this time, Staff does not believe that any of the above circumstances exist that warrant recirculation of the DEIR. The DEIR assumed the worst case in assessing assesses the environmental impacts that would result from grading and other stabilization measures necessary to conform to the Town’s landslide repair policy. Furthermore, the DEIR analysis of secondary hydrological, biological and visual impacts that would result from the required landslide repair also assumes the maximum level of impact that would result from landslide mitigation in accordance with the Town’s landslide repair policy. In consequence, the DEIR designates many of the impacts as significant and unavoidable ("SU").

The DEIR identifies a number of secondary impacts that would result from mitigation measures identified for landslide repair, many of which are considered significant and unavoidable ("SU"). Although the precise amount and extent of grading that would be required was not specified, the DEIR identifies the performance standards stipulated by the Town’s policy on the repair of landslides, and identifies a number of landslide repair and stabilization measures that would mitigate the impact. Furthermore, the DEIR analysis of secondary hydrological, biological and visual impacts that would result from the required landslide repair assumes the maximum level of impact that would result from landslide mitigation in accordance with the Town’s landslide repair policy.

Section 15126.4 (D) of the CEQA Guidelines states that "if a mitigation measure would cause one or more significant effects in addition to those that would be caused by the project as proposed, the effects of the mitigation measure shall be discussed but in less detail than the significant effects of the project as proposed." Nevertheless, we believe that the DEIR contains considerable detail regarding the impacts of landslide remediation. We intend to add further details regarding the proposed landslide repairs, and this will include more information about the secondary impacts. However, given the "worst case" assumptions of the DEIR, this additional information is unlikely to indicate that the project will have impacts that were not discussed in the DEIR or that the impacts that were discussed will be more severe thant predicted in the DEIR.

To respond to comments submitted on the DEIR, the Final EIR will clarify and amplify on the mitigation necessary to repair landslides in accordance with the Town’s Landslide Repair Policy. However, Staff does not believe that this new information will be significant because no new impacts beyond those previously discussed in the DEIR would result, and there would be no change in the severity of the impacts already reported in the DEIR.

The foregoing analysis also applies to the other topical areas (visual impacts, cumulative impacts, traffic/bicycle safety impacts, etc.) that were raised during the comment period. Staff does not believe that these comments require recirculation of the DEIR. Additional information and details will be provided in the Final EIR that will amplify and clarify impacts. It is unlikely that this additional information will indicate that the project will have impacts that were not discussed in the DEIR or that impacts that were discussed will be substantially more severe than predicted in the DEIR.

FUTURE ACTIONS REQUIRED

The Commission will need to hold a subsequent meeting andat least one public hearings to consider the Final EIR and the merits of the project application. At that hearing, the Commission will have the opportunity to determine whether the EIR has been prepared in conformance with CEQA and is adequate to meet CEQA purposes under the law. Section 15151 of the CEQA Guidelines sets that adequacy standard as follows:

An EIR should be prepared with a sufficient degree of analysis to provide decision-makers with information which enables them to make a decision which intelligently takes account of environmental consequences. An evaluation of the environmental effects of a proposed project need not be exhaustive, but the sufficiency of an EIR is to be reviewed in light of what is reasonably feasible. Disagreement among experts does not make an EIR inadequate, but the EIR should summarize the main points of disagreement among the experts. The courts have looked not for perfection but for adequacy, completeness, and a good faith effort at full disclosure.

Staff believes that the Final EIR will meet this standard.

Theis meeting at which the Commission will discuss the Final EIR has been tentatively scheduled for January 22, 2003. This would allow sufficient time for Planning Commission and Town Council review of the Final EIR. At that time, the Commission will make a recommendation on certification of the Final EIR and the project merits. Staff will keep the Commission apprised of any scheduling matters affected by the court decision on the CEQA litigation filed against the Town by the applicant.

RECOMMENDATION

Staff recommends that the Planning Commission determine that recirculation of the DEIR is not required under CEQA, and direct that the Final EIR be prepared and releasedaccept the DEIR as adequate and direct Staff and the Town’s EIR consultant to respond to comments and prepare the Final EIR.

EXHIBITS

Index of Comments Received on Draft EIR.

Comment Letters not previously transmitted.

Planning Commission Minutes of October 9, 2003.Excerpts from CEQA Guidelines

Excerpts from Tiburon Environmental Review Guidelines.

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