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Santa Clara City Desk: Dec. 25, 2013

Postponement of Development Project Hearing Raises Question of CEQA “Greenmail”

The City Council was ready for a full hearing on a high-density residential infill project, 45 Buckingham/66 Saratoga, last Tuesday night, when the project’s developer, Prometheus Corp., asked at the last minute that the hearing be continued until Jan. 7, 2014.

The Council’s action would have been to approve or disapprove zoning changes from Community Mixed Use to High Density Residential, and resolutions that would exempt the project from a full Environmental Impact Report (EIR) – satisfying requirements with a Mitigated Negative Declaration (MND) and Mitigation Monitoring or Reporting Program (MMRP). Currently, the parcel is parking lots for Stevens Creek car dealers, auto repair shops, and several retail establishments including smoking paraphernalia and adult novelties shops.

The reason for the postponement given was that there were “issues that the developer needed to deal with.” However, the public documents (preview.tinyurl.com/nf683wt) for the project suggest that the Santa Clara project is perhaps the latest target of California Environmental Quality Act (CEQA) “greenmail” by construction unions threatening unneeded, time-consuming and costly CEQA reviews in order to increase their control over project hiring.

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In November, the city received a letter from attorney Ellen Trescott of the Sacramento-based law firm Adams Broadwell Joseph & Cardozo challenging the adequacy of the environmental review for a variety of issues including “hazardous waste mitigation, to cleaner burning construction equipment, greenhouse gas emissions, and traffic…Because there is significant dispute about the severity of environmental impacts associated the Project, the more proper course of action is to direct the preparation of an Environmental Impact Report (EIR).”

A Law Firm Known for Its Union-Driven CEQA Appeals

Trescott is representing a group called Santa Clara Residents for Responsible Development, which, according to her letter, “includes David Clark, R.C. Crawford, Phillip Francisco, Victor Galvez, Matt Hancoc, Ricci Herro, Gregory Small, Robert Stuhr, Corey Quevedo, Scott Thomas, the International Brotherhood of Electrical Workers Local 332, Plumbers & Steamfitters Local 393, Sheet Metal Workers Local 104, and their members and their families who live and/or work in the City of Santa Clara and Santa Clara County.”

Adams Broadwell Joseph & Cardozo has made a name for itself in the last few years by bringing CEQA appeals against development project approvals on behalf of various “residents” groups whose principal members are construction unions. In 2012 it represented similar groups in objections to a Pasadena power plant re-powering project, a Napa water pipe project, and a San Bernardino County solar energy project.

Closer to home, the law firm represented Santa Clara & San Benito Counties Building and Construction Trades Council in disputing the San Jose City Council’s approval of the environmental study for the One South Market high-rise apartment project. The group’s appeal lost 9-2, with San Jose Mayor Chuck Reed calling the entire proceeding “just an abuse of the environmental process,” according to the San Jose Mercury report.

City Defends Environmental Study Findings

The challenges to the 45 Buckingham environmental report were the subject of reportedly lively discussion at the Nov 20 Planning Commission meeting.

“In response to the concerns raised about the MND, Assistant City Attorney Alexander Abbe noted that there is no requirement to re-circulate an MND if revisions made to the mitigation measures will strengthen the mitigation,” according to the meeting minutes.

“Mr. Abbe noted that the City and Environmental Consultant are in agreement that there is not a fair argument for significant impact made by the proposed project and therefore the MND is sufficient. The [Planning] Commission inquired about the findings from the soil testing. It was noted that Mitigation Measure 1.4 addresses this through a site mitigation plan (SMP) in accordance with California hazardous waste regulations.”

The company that did the soil study, PlI Environmental, concluded in its report, that “Relatively minor pesticide concentrations were reported in shallow soil…no elevated lead or arsenic concentrations were reported. Based on the analytical results of this investigation, Pll believes that shallow soil is acceptable for unrestricted residential use.

CEQA Reform Overdue?

The original CEQA Act was passed in 1970 and signed into law by then-governor Ronald Reagan. The law mandates that public agencies mitigate or avoid significant development project effects on the environment. Critics say that CEQA has become an all-purpose tool for anybody to use block anything they don’t like – from NIMBYs to businesses trying to block competitors. CEQA lawsuits can be filed anonymously, and the law empowers anyone to file one.

In San Francisco, a plastic bag manufacturer brought a CEQA lawsuit claiming that the city’s plastic bag ban failed to adequately study the environmental impact of paper bags. A San Jose gas station owner succeeded in forcing his competitor across the street to conduct a full EIR in order to add three gas dispensers, according to the CEQA Working Group (ceqaworkinggroup.com).

There is broad agreement that some reform is needed for a 40-year-old environmental law that pre-dates knowledge about global warming. Environmental groups, including the Greenbelt Alliance, note that CEQA has been used to stall and block urban infill residential construction, work-live developments, and mass transit projects – all of which have indisputable benefits for greenhouse gas reduction.

A bill to streamline the law stalled in state legislature last year.

Campbell Resists Serving Additional Santa Clara Students

Another 45 Buckingham project opponent is the combined Campbell Union school districts, which claim they have no classroom space for additional students from the development.

In fact, the Santa Clara Planning Dept. analysis showed that the development would have little impact on enrollment – adding 17 K-8 students and 19 high school students. These students could be accommodated by current capacity at Monroe Middle and Del Mar High Schools. And, as Lynhaven Elementary School has been over capacity for three years and in that time added two classrooms, the project wouldn’t change that picture significantly, either.

To fund the additional enrollment, Campbell would also be in line for a share of developer fees as well as additional property tax. The Campbell districts already receive $1.6 million in Santa Clara property taxes to serve about 100 students, under its Basic Aid funding status – something that in business would be called a “cash cow.”

Enough additional students would tip the scales to change the district to direct state per-student funding, which would potentially be a budget cut – although, with the new school funding system, that isn’t certain.

At one time, Campbell had three schools in the West of Pruneridge neighborhood: Parkway Elementary, Cypress Middle, and Blackford High School. Campbell closed them decades ago and sold the properties. Last June, Campbell successfully fought the second challenge in five years by the neighborhood to join Santa Clara Unified.

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