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HomeMy WebLinkAboutTC Res 2007-02-21 (5) RESOLUTION NO. 11-2007 A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF TIBURON DENYING THE TffiURON NEIGHBORHOOD COALITION APPEAL OF CERTIFICATION OF THE FINAL ENVIRONMENTAL IMPACT REPORT FOR THE CONGREGATION KOL SHOFAR EXPANSION PROJECT (FILE # 10404) ASSESSOR PARCEL NO. 38-351-34 BE IT RESOLVED by the Town Council (the "Council") of the Town of Tiburon (the "Town"), County of Marin, State of Cali fomi a, that: WHEREAS, on May 31,2006, the Tiburon Planning Commission (the "Commission") adopted Resolution No. 2006-15 certifYing the Congregation Kol Shofar Expansion Project Final Environmental Impact Report ("Final EIR"); and WHEREAS, on June 12,2006, the Tiburon Neighborhood Coalition timely appealed to the Town Council the Certification of the Final EIR. (See Exhibit A, Tiburon Neighborhood Coalition [June 12, 2006] Letter of Appeal); and WHEREAS, on September 29,2006, a Meeting Procedure Memorandum was prepared setting forth the order and the timing that the Mayor intended to follow at the October 24, 2006 and setting forth a cut-off date of October 20 at Noon for the receipt of mail the Town would consider at the October 24, 2006 meeting; and. WHEREAS, on October 13,2006 the Mayor and the Members of the Town Council received a Staff report responding to the appeals of the Final EIR Certification. (Exhibit B); and WHEREAS, on October 24,2006 the Council held a hearing following the procedures set forth in the Meeting Procedure Memorandum; and WHEREAS, at the October 24, 2006 hearing, the Council requested that the Tiburon Neighborhood Coalition submit written recommendations regarding the parameters of the expansion. The Council agreed to re-open the public hearing to accept public testimony on this document; and WHEREAS, on November 15,2006, the Council continued the hearing on the Congregation Kol Shofar and Tiburon Neighborhood Coalition Appeals, at which it received the report of its ad-hoc sub-committee and began deliberations; and WHEREAS, the Council heard additional public testimony at meetings held on February 7,2007 and February 21,2007; and WHEREAS, the Council has reviewed and considered the Tiburon Neighborhood Coalition appeal, the Final EIR, the letters of appeals submitted by Kol Shofar and Tiburon Neighborhood Coalition, all Staff reports, Town files and records and other documents, prepared Tiburon Town Council Resolution No. J J -2007 Adopted February 2 J, 2007 Page J for and or submitted to the Councilor Town staff relating to the Final EIR, proposed Project and/or the Tiburon Neighborhood Coalition appeal and all written and oral testimony timely presented regarding the Tiburon Neighborhood Coalition appeal; and WHEREAS, the Council finds that, for the reasons set forth in the Staff report responding to the appeals of the Final EIR Certification (Exhibit B), there is substantial evidence in the record to support the Council's independent conclusion that the Congregation Kol Shofar Expansion Project Final EIR complied with CEQA and local CEQA guidelines. NOW, THEREFORE, BE IT RESOLVED that the Tiburon Neighborhood Coalition Appeal of the Certification of the Congregation Kol Shofar Expansion Project Final EIR is hereby denied. Effective Date. This resolution shall be effective upon the date of its adoption. PASSED AND ADOPTED at the regular meeting of the Town Council of the Town of Tiburon, State of California, on February 21,2007, by the following vote: AYES: COUNCILMEMBERS: Berger, Fredericks, Gram & Smith NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: Slavitz A TT~SJ /; .~7 'I' / / t Z/ic-/!/t 1M' DIANE CRANEiACOPI, TOWN CLERK Tiburon Town Council Resolution No. 11-2007 Adopted February 21,2007 Page 2 A fP-e.J2 k:L TOWN OF TIBURON NOTICE OF APPEAL APPELLANT Name: Tiburon Neighborhood. eoali tion Address: 2 pasro Iti..rasol, TiburGn, CA 94920 Telephone: (415) 217-7416 (Work) (415) 2S4-140R Cell ~) ACTION BEING APPEALED Body: Planning, Oammission Date of Action: May 31, 2006 Name of Applicant: Conqreqation 1<01 Shofar Cbndi tional Use Pem.i t and Certification Nature of Application: of Environmental J1rtpact :Report GROUNDS FOR APPEAL (Attach additional pages, if necessary) Certification of Environmental Irrpact Report (EIR) is contrary to law and not supp:>rted. .by the. record, as. discussed on the attached pages. Last Day to File: June 12, 2006 Date Received: June 12, 2006 Fee Paid: $300.00 Date of Hearing: T.B.A. January 2004 ~ ~ ~ ~~W ~ fffi ~ JUN 1 2 ZO\~.6 W TOWN CLERK A TOWN OF TIBURON EXHIBIT NO. STEPHAN C. VOLKER JOSHUAA.H. HARRIs MAmIE E. RlDDLE Law Offices of STEPHAN C. VOLKER 436 14th STREET, SUITE 1300 OAKLAND, CALIFORNIA 94612 Phone 510/496-0600.:. Fax 510/496-1366 e-mail: svolker@volkerlaw.com 10.356,01111.131,02 June 12, 2006 Mayor Paul Smith Honorable Town Council Members Town of Tiburon 1505 Tiburon Boulevard Tiburon, California 94920 Re: Cross-Appeal by Tiburon Neighborhood Coalition Challenging Planning Commission certification of the Final Environmental Impact Report for the Kol Shofar Synagogue Expansion Project (Planning Commission File No. 10404) Dear Mayor Smith and Honorable Town Council Members: In accordance with Tiburon Town Council Policy 95-01, the Tiburon Neighborhood Coalition ,(the "Coalition") respectfully appeals the Tiburon Planning Commission's aqoption on May 31, 2006 of Resolution No. 2006-15, certifying the Final Environmental Impact Report (FEIR) for the Kol Shofar Synagogue Expansion Project (File No. 10404) on Assessor Parcel No. 38'-351-34. The grounds for this appeal are that the Planning Commission's Resolution No. 2006-15 is contrary to applicable law, inconsistent with the Commission's Resolution No. 2006-16, and not supported by the record evidence in this proceeding. The subj ect 'EIR cannot be lawfully certified because it is inadequate in the respects set forth below. The Coalition represents over 175 supporters from six major neighborhoods in the vicinity of the proposed Kol Shofar Project, as well as other concerned residents from throughout the Town of Tiburon. These six neighborhoods include residences from Reedland Woods Way and Vista Tiburon Drive, Paseo Mirasol and Via San Fernando, Upper Blackfield Drive, Via Capistrano, Via Los Altos, Karen Way and other Bel Aire streets including Lower Blackfield Drive. The Coalition supports the cross-appeal by the Greenwood Beach Homeowners Association. The Coalition respectfully petitions this Council to decertify theFEIR for the Kol 'Shofar Project, and to remand this matter to the Planning Commission to rectify the following deficiencies in the FEIR. .' ,,' . ~ -tt, 1. i'l'~ ,\-,...., Mayor"Paul Smith Honorable Town Council Members Town of Tiburon June 12, 2006 Page 2 I. SUMMARY OF FEIR DEFICIENCIES 1. The FEIR fails to remedy the Draft EIR's(DEIR's) deficient assessment of the noise impacts of the Kol Shofar Project. The Planning Commission properly found the DEIR's noise assessment deficient. In its Resolution No. 2006-16 denying Kol Shofar's Conditional Use Application, the Commission stated: "the Planning Commission disagrees with certain conclusions of the EIR based on evidence in the Entire Record. Specifically, the Planning Commission received written testimony from two acoustical experts stating that the Draft EIR's use of a 24-hour average metric, "Ldn" to assess the impact of intermittent noise spikes during the evening was not appropriate, as it trivializes short-term spikes in noise by averaging them against the ambient noise levels during the rest of the 24-hour period. The Final EIR acknowledges that arrival and departure noise levels will reach 65 decibels, and that background nighttime noise levels in the neighborhood are only 40-41dBA. FEIR, p. 43. Thus, the short-term noise impact of these evening events might reach 25 decibels against background levels at 11 :00 p.m., a very substantial increase. Neither the Draft ErR nor the Final EIR proposes any mitigation measure that would assure that the significant spikes in late night week-end' noise would be mitigated to achieve a level of insignificance. The Planning Commission therefore finds mitigation measures for Impact 3.4-B (Noise Impacts in Areas Surrounding the Project Site) inadequate to mitigate the increased noise." Resolution No. 2006-16, ~ J, pp. 3-4, emphasis added. 2. The FErn. and DEIR fail to adequately address and mitigate this Proje~t's adverse impacts on parking. The DEIR and FEIR fail to acknowledge the Project's clear and substantial violation of the Tiburon General Plan's and Zoning Ordinance's parking requirements for new Projects. The Planning Commission properly found in Resolution No. 2006-16 that the FEIR's parking mitigations are illusory because they are "infeasible": "Mitigation Measure 3.3-C.3 (the Parking Receipt Program) proposed for Impact 3.3-C (insufficient on-site parking resulting in unsafe turnarounds) is unwieldy, unduly difficult to monitor and enforce, and unlikely to be successfully implemented, and therefore infeasible. The Planning Commission finds that the alternative mitigations put forth in Alternative 7 to address the Project's deficient on-site parking are insufficient to off-set the basic problem of inadequate on-site parking, and simply spread or relocate impacts into surrounding neighborhood streets." Resolution No. 2006-16,~ J, p. 4, emphasis added. Rather than address and fully mitigate this Project's obvious parking deficiencies, the DEIR erroneously assumes that this Project may shift the Applicant's burden onto neighboring streets to absorb the excess vehicles its undersized parking capacity cannot accommodate. It asserts, incorrectly, that the Pro] ect proponent can divert "about 33 cars to park on-street along the Project site frontages of Via Los Altos and Blackfield Drive." Mayor Paul Smith Honorable Town Council Members Town of Tiburon June 12, 2006 Page 3 DEIR at p. 67. This assumption directly violates the Tiburon Zoning Ordinance, a conflict that neither the DEIR nor the FEIR addresses. The governing standards are set forth in Zoning Ordinance sections 16-5.8.2-.11. They direct that "[t]he required parking shall be provided on the parcel or contiguous lot or parcel where the use is located," or "on another parcel providing that the parcel is within the town in a commercial zone and is reasonably convenient to the subject parcel, ~ approved by the town." This Proj ect fails this test. Neither the DEIR nor the FEIR discloses the Zoning Ordinance's requirement that where parking is to be provided at an off-site location, then the Proj ect proponent must provide "a covenant by the owner or owners of such [off-site] parcels for the benefit of the town, in a form approved by the town, that the owner or owners will continue to maintain the required number of parking spaces so long as the building, structure, use or improvement is maintained within the town," and that the "title to and right to use the parcel or parcels upon which the parking spaces are to be provided shall be subservient to the title to the premises upon which the [project] building has been or is to be erected," or alternatively, tl1at the off-site parking spaces are secured by a "lease agreement. . . . reviewed and approved by the town." Tiburon Zoning Ordinance section 16-5.8 .2( a) and (b). It is unlikely, if not impossible, for Applicant to satisfy this requirement. Yet this conflict is swept under the rug. This omission defeats the purpose of an EIR, which is to identify and attempt to resolve environmental conflicts such as traffic and parking. The DEIR and FEIR likewise fail to determine this Project's maximum, simultaneous parking demand. Zoning Ordinance section 16-5.8.10 directs that where a project involves multiple uses such as the Applicant proposes here, "[p]arking required for multiple uses shall be the sum of the requirements for each individual use." But contrary to this clear requirement, the DEIR and FEIR only consider the impact of the greatest individual use - not the sum of all contemporaneous uses. Despite repeated requests from the Coalition for a comprehensive assessment of the timing and intensity of the different uses proposed for the Project, neither the DEIR nor the FEIR, nor any subsequent staff analysis, has determined the maximum simultaneous parking demand of the facility if it is expanded as proposed. Because the FEIR fails to rectify this omission, it cannot be certified. 3. Neither theDEIR nor the FEIR addresses and mitigates to insignificance this Project's profound conflict with the character of the existing neighborhood, in violation of Goals and Policies of the Tiburon 2020 General Plan. Neither the DEIR nor the FEIR addresses all of the Project's numerous and substantial violations of the Tiburon General. Plan and Zoning Ordinance. Instead, the DEIR and FEIR stop short of acknowledging many of the planning and zoning violations this Project poses. These violations are pervasive and underscore this Project's many Mayor Paul Smith Honorable Town Council Members Town ofTiburon June 12, 2006 Page 4 significant environmental impacts. As the Planning Commission found in Resolution No. 2006-16, "based on the evidence in the Entire Record, . . . the Project is inconsistent with numerous Tiburon General Plan Goals and Policies, and is not in compliance with provisions of the Tiburon Zoning Ordinance because of parking deficiencies and the cumulative activity levels, noise, disruption, and the sensitivity of the days and hours that these activity levels would occur. The Planning Commission further rmds that the Project is incompatible with surrounding residential development; and would be materially detrimental to the quiet enjoyment of people's homes and neighborhoods. Specifically, the Planning Commission fmds that the Project would be inconsist~nt with Tiburon General Plan Land Use Element Goals LV-A, LV-B, LU-C, LU-D, LV-H, and LU-I; with Land Use Element Policies LU-2, LU-6, and LU-13; Circulation Element Goals C-C, C-D, C-F, and C-l and Circulation Element Policy C-l; with Safety Element Goal SE-A; and with Noise Element Goals N-A, N-B, and N-C. The Plarming Commission further finds that the Project is not in conformance with, or fails to comply with, Tiburon Zoning Ordinance Sections4.04.02(a), (b), (c), (d), and (e); Sections 4.04.03(a)(1), (a)(2), and (a)(3); Sections 4.04.03(b)(1) and (b)(3); Section 5.08.04; Section 5.08.1 0; and Section 5.08.11." Id. at 3,r. '~1, p. 3. The FEIR' s failure to acknowledge and address these plan conflicts is a clear violation ofCEQA. CEQA Guidelines section 15125(d) directs that "[t]he EIR shall discuss any inconsistencies between the proposed project and applicable general plans. . . ." Id., emphasis added. Because the FEIR fails to do so, it cannot be certified. 4. Neither the DEIR nor the FEIR addresses and mitigates the Project's significant adverse impacts on traffic and circulation. The Project would generate substantial late night traffic on Saturday and Sunday evenings in a quiet residential neighborhood, dramatically increasing hazards to drivers and pedestrians alike. A~ the Planning Commission found iD. Resolution No. 2006-16, none of the mitigations proposed in DEIR and FEIR., even as supplemented by the Alternative 7 analysis, would prevent significant unsafe turn-around impacts from cars that cannot be accommodated by on-site parking and would be forced to seek parking on adjacent residential streets. Id. at ~ J, pp. 4-5. Turn-arounds on residential streets, particularly at night, pose significant impacts on public health and safety, and conflict with the General Plan's Land Use Goals LU-B, LU-D, and LU-H, which require new projects to "protect the health, safety, and welfare of the community," "preserve, protect, and enhance the small-town residential image of the community," and "protect and preserve existing neighborhood character and identity." The Proj ect' s' unsafe patterns of traffic and parking activity likewise contravene the Goals and Policies, of the Circulation Element, including Circulation Goals C-C, C- F, C- I, and C-l, which require proj ects to "maintain all existing . . . residential streets with consideration of . . . residents' safety . . . and protection of residential quality of life," "minimize traffic congestion," "provide adequate parking," and "take into consideration potential traffic and circulation impacts." Mayor Paul Smith Honorable Town Council Members Town of Tiburon June 12, 2006 Page 5 The DEIR's and FEIR's failure to address these General Plan conflicts violates CEQA's commarid that "[t]he EIR shall discuss any inconsistencies between the proposed project and applicable general plan. . . ." CEQAGuidelines S 15125(d). Therefore the FEIR cannot be certified. 5. Neither the DEffi nor the FEIR adequately addresses and mitigates the adverse impa'cts of this Project's nighttime light and glare on nearby residences. Although the DEIR concedes that "[h]eadlight intrusion is a visual invasion of privacy and is considered a potentially significant impact," (DEIR, p. 106, emphasis in original), the FEIR assumes that this impact will be mitigated to insignificance through landscaping and erection of a fence or berm. FEIR, p. 49 and Mitigation Measures 3.S-C.1 and 3.5- D.IO. But neither the DEIR nor the FEIR acknowledges that the mitigation measures they propose are not adequate to reduce the impact of vehicular headlight intrusion into the effected homes to insignificance. The proposed mitigation of the headlight intrusion into 35 Reedland Woods Way - an existIDg fence - would not shield the second story (i.e., the sleeping quarters) of this residence from direct headlight intrusion. The FEIR's assumption that headlight intrusion into 20 Reedland Woods Way would be reduced to insignificance because of the 100-foot distance is in error, as modem headlights are designed to reach several hundred feet. The FEIR's assumption that headlight intrusion into 220 Blackfield Drive would be insignificant because that,residence has been impacted by other headlight intrusions in the past "without complaint" does not in fact identify a mitigation measure as CEQA requires. Public Resources Code S 21002.1 (a) ("The purpose of an [EIR] is to . . . indicate the manner in which. . . significant effects can be mitigated."). The fact that this home is already affected by existing headlight intrusion does not mitigate the impact of the additional headlight intrusion that this Project would cause. Instead, it makes it worse. Moreover, the FEIR overlooks the fact that the addition of late night weekend events, as well as more frequent nighttime use of the facilities on week days, will substantially increase the frequency and duration of headlight intrusion, and extend it into much later hours. Suggestions that future landscaping might reduce these headlight impacts to insignificance are not borne out by any specific landscaping plan, would require many years to implement, and are not specifically enforceable in any event. F or these reasons, the Planning Commission correctly found in Resolution No. 2006-16 that "the mitigation measures specified for Impact 3.S-C (headlights on vehicles using the driveway) are inadequate to reduce to insignificance late-night week-end headlight intrusion into homes in the immediate vicinity of the driveway and parking lot. . . ." Id. at p. 4, emphasis added. Because the FEIR fails to acknowledge and address this failure to mitigate a significant impact, it cannot be certified. Mayor Paul Smith Honorable Town Council Members Town of Tiburon' June 12,2006 Page 6 6. Neither the DEIR nor the FEIR addresses alternative locations for the Project outside the Town of Tiburon. The DEIR and FEIR fail to ,examine off-site locations for the Project outside of Tiburon, even though roughly 85 percent ofKol Shofar's congregation resides outside the Town. DEIR, p. 155 ("this EIR does not examine an alternative of relocating the entire facility and programs to another location. In view of the Project's substantial conflicts with the Tiburon 2020 General Plan and Zoning Ordinance as found by the Planning Commission, it behooves the Town and the applicant to examine alternative sites outside the Town for part or all of the proposed Project. Since the primary impetus for the Project is a combination of large-scale , celebratory events on the weekends, consideration should be given to renting existing facilities at alternative locations for these short-term, occasional events. Although the public has repeatedly requested consideration of alternate sites, potential alternate locations outside the Town were ignored, and even those within the Town were summarily dismissed without careful consideration. Under these circumstances, CEQA requires consideration of off-site alternatives. Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553,575 fn. 7, citing San Bernardino Valley Audubon Society v. County of San Bernardino (1904) 155 Cal.App.3d 738, 751 and Methow Valley Citizens Council v. Regional Forester (9th Cir. 1967) 833 F.2d 810. Because the FEIR fails to consider alternative locations outside Tiburon, it cannot be certified. 7. The DEm. and FEIR do not address the Project as currently proposed. Subsequent to preparation 'of the DEIR and FEIR, the Applicant has modified the Project description substantially, changing previous configurations of the parking lot circulation plan, descriptions and numbers of events, on- and off-street parking proposals, and discussion of the corresponding changes in this Project's environmental impacts and compliance with the Tiburon General Plan and Zoning Ordinance. , The result is a confusing, indeed dizzying array of proj ect features and impacts the cumulative effect of which is to defy reasoned public assessment of this Project'sllhpacts. "An accurate, stable and finite project description is the sine qua non of an informative and legally sufficient EIR."County of In yo v. City of Los Angeles (1977) 71 Cal.App.3d 185, 193. Kol Shofar's last minute revisions to Alternative 7's Table No.1 respecting current and proposed usage of the facility only adds to the public's confusion. Since these changes were never addressed in either the DEIR nor the FEIR, the FEIR cannot be certified. 8. Neither the DEIR nor the FEIR addresses or mitigates the impacts of foreseeable growth in the membership of Congregation Kol Shofar and attendance at its events that will be enabled by the proposed facility expansion. The DEIR concedes that Congregation Kol Shofar's membership's "[e]xpansion would result in additional traffic congestion and parking, noise, and visual impacts and potentially increasing land use compatibility inconsistencies." DEIR, p. 140. Yet neither the DEIR Mayor Paul Smith Honorable Town Council Members Town of Tiburon June 12, 2006 Page 7 nor the FEIR, nor the Alternative 7 analysis, discloses the foreseeable growth in membership of Congregation Kol Shofar. Nor do they reveal the foresee ably increased attendance at the events to be held at the proposed facility. Nor do the DEIR and FEIR attempt to forecast, much less to mitigate, the foreseeable increased impacts in traffic congestion and parking, noise, visual aesthetics, and neighborhoo,d character that will result from this foreseeable growth. This omission violates CEQA. CEQAGuidelines section 15144 requires the To'Wll to ~'use its best effort~ to find out and disclose all that it reasonably can." Courts require agencies to conduct a "thorough investigation" before concluding that an impact cannot be evaluated. Citizens to Preserve the Ojai v. County of Ventura (1985) 176 CaLApp.3d 421,430. Where, as here, continued growth for a congregation whose size has tripled during the past 20 ye~s is a "reasonably foreseeable consequence," its impacts must be examined. Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 396. Because the FEIR fails to do so, it cannot be certified. II. DETAILED DISCUSSION OF DEIR AND FEIR DEFICIENCIES A. The Final EIR Fails to Adequately Address Inconsistencies with the General Plan or to Properly Categorize Those Inconsistencies as Significant Environmental Impacts. The Final EIR's treatment of the Project's consistency with the General Plan violates multiple tents of CEQA. First, it makes the mistaken assertion that "such a consistency analysis...is not required by CEQA." FEIR at 6. No authority is cited for this proposition, and it is flatly contradicted by CEQA Guidelines section 15125(d), which requires that an EIR "discuss any inconsistencies between the proposed project and applicable general plans. . . ." 1 ' Second, the Final EIRwrongly asserts that a proj ect' s inconsistency with a general plan is not an environmental impact. See, FEIR, Responses F69, G21. The Final EIR cites no authority for this assertion, and it is again flatly contradicted by cases decided under CEQA. In Citizens Assn. for Sensible Development of Bishop Area v. County of In yo (1985) 172 Cal.App.3d 151, 175, the coUrt held that "a project would 1 Assessment of a project's impacts on local or regional plans is clearly required as well in the ''Environmental Checklist" in Appendix G of the CEQA Guidelines, usedfor determining whether impacts are significant for EIRs. The Checklist requires assessment of any "[ c )onflict with any applicable land use plan, policy, or regulation of an agency with jurisdiction over the project (including, butnot limited to the general plan, specific plan, local coastal program, or zoning ordinance) adopted for the purpose of avoiding or mitigating an environmental effect." Mayor Paul Smith Honorable Town Council Members T own of Tiburon June 12, 2006 Page 8 normally be considered to have a significant effect on the environment if it conflicts with the adopted environmental plans and goals of the community .where it is located." More recently, in Pocket Protectors v. City of Sacramento (2004) 124 Cal.AppAth 903, 930, the court held that an inconsistency with the General Plan was ipso facto a significant environmental impact, which had to be considered as such in an EIR. Thus, although the DEIR and to a lesser extent, the FEIR conclude that the Project is inconsistent with the existing General Plan in a number of respects, they err in refusing to treat any of these inconsistencies as a significant impact, in direct violation of well- established CEQA precedent. . "A project is inconsistent if it conflicts with a general plan policy that is fundamental, mandatory, and clear." Endangered Habitats League, supra 131 Cal.AppAth at 782, citing Families Unafraid, supra 62 Cal.App.4th at 1341-42. If a project is inconsistent with the Planning and Zoning Laws, then it cannot be approved. NeighborhoodAction Group, supra 156 Cal.App.3d at 1184-86. The Project will violate requirements of both the General Plan and the Zoning Code and therefore poses significant impacts. . First, as discussed above, the DEIR clearly identifies many inconsistencies of the Project with the General Plan, including but not limited to inconsistencies with: . OSC-2 in the old General Plan and LU-5 in the new Plan ("new development shall be in harmony with adjacent neighborhoods and open spaces") (Draft EIR at 130); . Policies C-C in the old and new General Plans ("to maintain all existing, as well as to design all future, residential streets with consideration of residents' safety, cost of maintenance, and protection of residential [quality of life]") (Draft EIR at 133); and . Old OSC-11 and new OSC-35 ("...grading shall be kept to a minimum and every effort ... made, to retain the natural features of the land including. . . trees. . . ") (Draft EIR at 131). Additionally, the DEIR identified inconsistencies with the Town Zoning Code, including, but not limited to, fmdings of inconsistency with: . Section 4.02.00 (d) (Site Plan and Architectural Review) because "[t]he proposed non-residential buildings and parking facilities are out of character with surrounding residences" (DEIR at 136); Mayor Paul Smith Honorable Town Council Members Town of Tiburon June 12, 2006 Page 9 . Section 4.04.00 because the Project is not "properly related to the development of the neighborhood as a whole" or "reasonably compatible with the types of uses normally permitted in the surrounding area" (DEIR at 137); and . Zoning Code S 5.08.04 (Parking) because "the project would not include sufficient spacesto meet [the parking] criteria" (DEIR at 138). In addition to these violations identified in the Draft ErR, the Project would also violate the following key parking provisions in the Zoning Code: . Section 5.08.00 (Parking and Loading) states that "[n]o structure shall be constructed unless spaces for parking and truck loading and unloading are permanently provided and maintained for the benefit of residents, employees, customers, and visitors, within or outside of buildings or in combination of both," yet the Proj ect will not provide adequate parking; . Section 5.08.01 (Applicability) states that "[a] new use, structural addition, or alteration on such parcel shall be allowed only if it does not increase or create a parking deficiency as determined in this section," yet the multi-purpose room will create a new parking deficiency under the terms of the code; . Section 5.08.02 (Location of Required Parking) states that "required parking shall be provided on the parcel or contiguous lot or parcel where the use is located [and] . [f]or non-residential uses, the required parking may be provided on another parcel providing that the parcel is within the To'WD. in a commercial zone and is reasonably convenient to the subject parcel, as approved by the Town.," yet the developer here has not provided the required parking and has not suggested a plan of how it would do so; . Section 5.08.03 (A) states that "[t]he required parking stalls, loading berths and parking aisles may not be located on any street right-of.,way," yet Kol Shofar's multi-:purpose room users will use the streets for parking every Saturday and Sunday and during the High Holidays when there is no other place to park; . Section 5.08.03 (D) states, in part, that "[a]ccess driveways shall not be arranged , so as to unduly increase hazards to traffic or pedestrians," yet the entrance and exit points to the on-site parking present significant hazards to neighborhood traffic, including bicyclists and pedestrians; . Section 5.08.03 (F) states, in part, that "[l]arge paved areas shall be given visual relief by the interspersion of landscaping within the paved area, as well as around Mayor Paul Smith Honorable Town Council Members Town of Tiburon June 12, 2006 Page 10 the perimeter," yet the current plans for the new parking lot do not include landscaping within the paved area; . Section 5.08.04 Cd) (Parking Requirements) states that for places of assembly, one spot shall be provided "for each 4 seats of maximum seating capacity; or one for each 10 square feet of assembly area, whichever is more," yet the Project's 139 parking spaces pale in comparison to: (1) the 299-space demand from the sanctuary and multi-purpose room' (calculated through the maximum seating capacity ratio) and (2) the 363-space demand from the entire facility. DEIR pp. 65-66. . Section 4.04.11 (Off-Street Parking and Loading Requirements), under the Conditional Use Permits Section of the Zoning Code, directs that "[t]he requirements for provision of off-street parking and loading applicable'to the particular use shall prevail, unless in the fmdings' and conditions recited in the Resolution, specific additional requirements are made with respect thereto," yet the off-street parking requirements seem to have been cavalierly dismissed because the violations will only occur occasionally. Because construction of the multi-purpose room will contribute additional, significant parking deficiencies in and around Kol Shofar, the addition is incompatible with both the words and the spirit of the Zoning Ordinance's parking requirements. . The Project is simply too large for this residential neighborhood. It violates parking standards. The General Plan and Zoning Code protect residential neighborhoods from inappropriately large development projects. The EIR must acknowledge this conflict as a significant impact. Because the FEIR fails to do so, it cannot be certified. . B. The Final EIR Inexplicably Changes the Conclusions of the Draft EIR Regarding Key Inconsistencies with the Gene'ral Plan and Zoning Code. The Draft EIR included a review of the Project in relationship to the General Plan then in effect, and the Final EIR now includes a review of the Project in relationship to the new Tiburon 2020 General Plan. However, despite the fact that some of the language in Tiburon 2020 is identical to the old General Plan (or conceptually the same), the Final EIR concludes in some instances that the Proj ect is consistent while the Draft EIR concluded it was not. There is no explanation presented for this arbitrary about-face. The analysisin the FEIR is, thus, directly undermined by the analysis in the DEIR. Mayor Pau~ Smith Honorable Town Council Members Tovm of Tiburon June 12, 2006 Page 11 The following are examples of these unexplained contradictions between the Draft EIR and Final EIR. In all instances, the conclusion of Project inconsistency in the Draft EIR was changed without explanation to Project consistency in the Final EIR: . Both OSC-2 in the old General Plan and LU-5 in the new Plan contain the same language: ''New development shall be in harmony with adjacent neighborhoods and open spaces." Compare Draft EIR at 130 with Final EIR at 9. The DEIR concludes that the "new non-residential buildings and parking areas could be considered to not be"in harmony' with surrounding single family uses." The FEIR, however, flatly determines the opposite, that the new uses are in harmony and therefore are consistent with the General Plan. ld. . Policies C-C in the old and new General Plans have virtually identical language: "To maintain all existing, as well as to design all future, residential streets with consideration of residents' safety, cost of maintenance, and protection of residential [quality of life]." Compare Draft EIR at 133 with Final EIR at 16. The FEIR determined that the Project was consistent, while the DEIR said that the proj ect would be inconsistent. ld. . Old OSC-l1 and new OSC-35 contain identical language: ".. . grading shall be kept to a minimum and every effort ... made to retain the natural features of the land including. . . trees. . .." Compare Draft EIR at 131 with Final EIR at 13. Again, the conclusions of the FEIR and DEIR conflict. ld. The Draft EIR also made findings of inconsistency with the Town Zoning Code which conflict with the Final EIR' s findings of consistency with certain policies in the new General Plan. For example, the Draft EIR found that the Projectwas inconsistent with subsection (d) of Section 4.02.00 (Site Plan and Architectural Review) because "[t]he proposed non-residential buildings and parking facilities are out of character with surrounding residences." DEIR at 136. Yet, the Final EIR concludes that the Project is consistent with new LU-H requiring the Town "[t]o protect CUld preserve. existing neighborhood character and identity" (FEIR at 8) and consistent with new LU-13 calling for the preservation of "neighborhood character." FEIR at 10. Yet, again, there is no explanation for these contradictory findings. The Draft EIR also determined that the Proj ect was inconsistent with provisions in Section 4.04.00 relating to CUPs, including separate requirements that the location of the Project be "properly related to the development of the neighborhood as a whole" and "reasonably compatible with the types of uses normally permitted in the surrounding area." DEIR at 137. Yet, the Final EIR found that the Project was consistent with new LU-I requiring that developments be "compatible with surrounding neighborhoods." FEIR at 8. Mayor Paul Smith Honorable Town Council Members Town of Tiburon June 12, 2006 Page 12 Most confounding is the conflict in the fmdings regarding the Project's consistency with Town parking requirements. The DraftEIR found the Project inconsistent with the parking requirements in Zoning Code 9 5.08.04 because "the project would not include sufficient spaces to meet these criteria." DEIR at 138. On the other hand, the Final EIR fmds that the Proj ect is consistent with new Goal C- I "to provide adequate parking." The unexplained and unsubstantiated reversals contained in the FEIR reveal the fundamental lack of analysis in the environmental report. Changing conclusions about the Project's consistency with the General Plan and Zoning Ordinance does not alter the .DEIR's prior analysis and determination that the project is inconsistent. Without more, such as a significant alteration in the Project, the contradictions in the two documents render the analysis arbitrary and highlight the CEQA deficiencies in the Project's review. Because the FEIR fails to acknowledge and rectify these substantial inconsistencies, it cannot be certified. c. The FEIR Does Not Adequately Address the Parking Requirements in Tiburon's Zoning Law. The Draft EIR showed that there is a significant disparity between the parking provided for every one of the facilities in the Project and the parking requirements in Section 5.08.04 of the Town Code. DEIR at 64, Table 5. Section 5.08.04 requires one parking spot '''for each 4 seats of maximum seating capacity." Section 5.08.04. The DEIR therefore concluded that the Project was "inconsistent" with this provision, and, indeed, that it could not meet the criteria in that provision allowing for a reduction in the number of required spaces. DEIR at 138. The Draft EIR noted that "use of the multi- purpose room alone at full capacity could result in parking demand in excess of on-site supply." DEIR at 65. Unfortunately, the Draft ErR impermissibly failed to identify this inconsistency as itself a significant impact under CEQA, as discussed above. Also, the Final EIR appears now to backtrack from some of the conclusions regarding this inconsistency in the Draft EIR, despite the fact that there has been no change in the size of the Proj ect. The Final EIR does not rectify any of these problems and is largely dismissive of the significant parking deficiency in the Project expansion. First, the Final EIR claims that the parking deficiency is not a significant impact under CEQA "because Section 5.08.10 of the Town Code allows for a reduction in the total number of Code required parking spaces." FEIR at 140. The FEIR's puzzling reference to the inapplicable "dual use" parking provision must be ignored because the Draft EIR found that the Code's criteria for reduction under that provision are not satisfied by the Project, and the Final EIR confirms this. D EIR' at 138; FEIR at 140. Mayor Paul Smith Honorable Town Council Members Town of Tiburon June 12, 2006 Page 13 The Final EIR also now claims that the failure to meet these Code requirements has been mitigated by a new parking receipt mitigation measure. But, nothing in the Town Code's parking provisions allows such deficiencies in onsite parking to be excused by this kind of mitigation measure. In fact, the Zoning Ordinance specifically directs that the requirements of off-street parking for conditional uses "shall prevail, unless. . . specific additional requirements are made with respect thereto." Section 4.04.11. Thus, the Project must provid~ enough on-site parking for the maximum number of occupants, per Section 5.08.04. Even so, there are serious questions 'about the Final EIR's evaluation of the effectiveness of such a parking receipt program, including many, basic questions about the mechanics of the program proposed for the fIrst time in the Final EIR. Will Kol Shofar "ticket monitors" - for lack of a better term - block entrance to religious ceremonies if the entrant does not present a valid ticket? How will Kol Shofar prevent reuse of tickets from previous events? Will Kol Shofar limit access to the property for the entirety of the service or scheduled event, or just at the beginning? How will Kol Shofar distinguish between people who honestly arrived on foot and therefore would not need a ticket and those attendees who parked out of sight and then walked to Kol Shofar? But ev<:?n if the ticket plan worked as represented, it would still be expected that people would in the first instance drive to Kol Shofar thinking there will be sufficient parking and those in excess of the spaces there will have to turn around and drive elsewhere to get a receipt, with the result that there is more traffic on these streets, not less. Seemingly, the ticket program promises to produce manyfrustrated drivers who, because they were among the last to arrive, were denied on-site parking and thus entrance to the property. These drivers, consequently, will be hurried and aggravated ,as they leave the parking lot in search of parking - somewhere else. Thus, even with the ticket system, traffic numbers will' still increase, and the dangers associated with increased number of cars will increase as welL The ,Final EIR creates even further questions about exactly where parking for Kol Shofar events will be provided. As noted above, there is no parking plan provided, either for onsite valet parking or for locating where offsite parking will be allowed. Project changes made for the fIrst time in the Final EIR now necessitate the loss of seven spaces on the Via Los Altos parking lot (FEIR at 40-41) and the creation of replacement spaces in the lower lot, requiring its further reconfiguration. There is likely to be a further loss of spaces in this parking lot because of the need for emergency access around the perimeter of the school building. 'Mayor Paul Smith Honorable Town Council Members Town of Tiburon June 12, 2006 Page 14 Parking, therefore, remains an unresolved, unmitigated significant impact that will, if this Project is allowed to proceed, create continual conflicts between the neighbors and members ofKol Shofar. Such conflicts - as identified in the Tiburon planning and zoning laws and normally avoided by adherence thereto - is a significant and unavoidable impact of the "Project under CEQA. Because the FEIR fails to acknowledge and address this point, it cannot be certified. D. The Description of the Project Remains Inadequate A complete description of the project is the es~ential starting point for an EIR. Unfortunately, the description of the Project remains incomplete in the Final EIR, and that document creates added uncertainty as,to certain features of the Project. Thus, there is still no determination of the feasibility of the flood detention pond proposed to be required or what its impacts will be. See Response F61. The site of offsite parking lots has yet to be determined or their impacts evaluated. See Response f64. No parking plan has been provided. See Response E21. And the project proponent still has not determined where some of the onsite parking spaces will be provided and whether any changes in the configuration of site development may be necessitated by them. See Final EIR at 40-41. The Final EIR also continues to give insufficient attention to the CUP ,and other authorizations which must be obtained from the Town in order for these facilities and activities to be approved. Although the Draft EIR stated that "[t]he proposed project would require approval of a Conditional Use Permit Site Plan and Architectural Review approval" (p. 14), neither it nor the Final EIR includes any descriptions of the proposed terms of these approvals. . Indeed, the CUP approval ~s one of the key actions which requires the EIR analysis. In this respect, the Final EIR departs from CEQA's long-established definition of the project as "the whole of an action which has the potential for resulting in either a direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment." Pub. Res. Code S 21065. "Project" refers both to the "underlying activity being approved by an "agency," and "the governmental permits necessary to develop such an undertaking." 14 Cal. Code Regs. S 153 78( c ) (emphasis added). Obviously, a description of the proposed CUP is important. Indeed, in a number of contexts, the Final EIR makes "assumptions" about what will be in the CUP. See, e.g., FEIR, Response F8. In other places, the EIR defends its failure to conduct certain analyses by claiming that the "Conditional Use Permit, if approved, would establish" certain conditions. FEIR at 21. Mayor Paul Smith Honorable Town Council Members Tovm of Tiburon June 12~ 2006 Page 15 Yet, in response to the Coalition's comment on the Draft ErR that all of the terms of the CUP need to be set forth as the "governmental permit necessary to develop'''' the Project, the Final ErR simply responds that "[t]he actual conditions that the Town would , add if it approves the CUP amendment are currently unknown." Response F3. To add to the confusion, subsequently released Kol Shofar Alternative 7, proposing a new set of C;:UP conditions. The Project, including the CUP conditions, has morphed significantly, but without a corresponding amendment and recirculation of the ErR. As discussed below in the section addressing recirculation, the FEIR's incomplete attempts to analyze such a rapidly changing project do not satisfy CEQA. This omission violates Tiburon' s "Environmental Review Guidelines." They require that mitigation be clearly identified so that the analysis of the impact and the mitigation measure can be clear. In Section F.8., Tiburon's Guidelines instruct: The discussion of mitigation measures shall distinguish between the measures that are proposed to be included in the project and other measures that are not included but could also reduce adverse impacts. This discussion shall identify levels to which impacts will be reduced by mitigation and the basis upon which such levels were predicted. Where several measures are available to mitigate an impact, each should be discussed and the basis for selecting a particular measure should be identified. Section F.9. similarly states: ' All mitigation measures which are proposed to be included in the project shall include a detailed description of the steps to be taken to ensure implementation. The discussion shall include an item by item identification of the specific mitigation, the monitoring action, criteria and standards used, process for signing off completion of task and noncompliance issues. These Guidelines thus clearly mandate that the entire package of mitigation measures be identified from the outset. The Town's Guidelines require that the environmental analysis of the proposed mitigation measures be specifically detailed so as to fulfill CEQA's purpose of fostering informed decisionmaking., Because some of the key mitigation measures for this Project (including CUP conditions) have been changed with each new version of the environmental analysis, the FEIR does not comply with the Town's "Environmental Review Guidelines" and therefore cannot be certified. Mayor Paul Smith Honorable Town Council Members ToWn of Tiburon June 12, 2006 . Page 16 The FEIR's failure to address the terms of the CUP that will be proposed for adoption, as part of the Project description, violates CEQA. Here, the Final ErR simply asserts that the information is not available, but presents no reason for not obtaining the information. The lack of an adequate project description undermines the CEQA process from the outset and blocks the development of meaningful information on the Proj ect' s impacts. Because theEIR., here, failed to adequately describe the Project, it fails to provide the infonnation essential to an informed decision, and cannot be certified. E. Key Impact Topics Are Inadequately Evaluated. The lead agency may deem a particular impact to be insignificant only if it produces rigorous analysis and concrete substantial evidence justifying the finding. Kings County Farm Bureau v. City ofHanford(1990) 221 Cal. App. 3d 692. The analysis in the Final EIR falls short of this standard. Traffic and Circulation The Final EIR fails to address the Project's impact on the intersection of Tiburon Boulevardand Blackfield Drive adequately. Among other things, it rejects the request of Commissioner Collins that the "summer conditions" at this intersection be evaluated, given the EIR's recognition that those conditions may be worse than the ones used to determine the magnitude of the Project's impact on this intersection. In addition, while the Draft EIR unequivocally required that Kol Shofar fund the lengthening of the Tiburon Boulevard left turn lane onto Blackfield, the Final EIR adds uncertainty to this mitigation by suggesting that later analysis by Caltrans might allow for a change in signalization in lieu of lengthening the lane. FEIR at 29-30. However, this is an analysis that shouJd be performed now by the Town rather than deferring this option to later study by Caltrans. Among other things, the Final EIR recognizes that a change in the signalization could lead to an adverse change in the LOS ratings of particular intersections. If so, this would be an impact of the Project not studied in the EIR. Clearly, this issue cannot be 'left to later study by another agency. The Draft EIR also identified the addition of traffic to the "inadequate driveway" on the southwest end of the site as a potentially significant safety impact. DEIR at 63. As mitigation for this impact, the Draft EIR stated that "[t]he applicant shall cut roadside vegetation on the project site west of the driveway or provide an engineering/survey analysis of what the sight lines would be if the vegetation were removed." DEIR at 64. However, a subsequent study included in the Final EIRdemonstrates that the required sight line could not be achieved by cutting vegetation, and as substitute mitigation the Final EIR proposes restricting the use of this lot to Kol Shofar, school or event staff or employees. FEIR at 40. Mayor Paul Smith Honorable Town Council Members Town of Tiburon June 12, 2006 Page 17 However, there are a variety of unanswered questions raised by this change in mitigation. What is the basis for concluding that the 12 people will come in only 6 cars? Since there will now be more evening and daily events accommodated by the Proj ect expansion, there may be increased use of this lot at other times which has not been studied in the EIR. The sightlines will remain inadequate, but this lot will continue to be used at times varying from its current use. The Final EIR also now states that closure of this lot for public use means that most school drop off and pickup would occur at the new drop-off area on the east side of the site. FEIR at 41. Despite the claim that this was studied in the Draft EIR., that document did not take account of the increased usage of the exit onto Reedland Woods Way resulting from the closure of the new lot to the public. The Draft EIR at page 69 stated that traffic from cars queue for 50' along Reedland Woods Way (between Blackfield Drive and the Applicant's driveway) as they , exit the parking lot. However, as the Coalition noted in its comments, the Draft EIR did not adequately consider the safety impacts to the residents and children of Reedland Woods Way as they attempt to use their neighborhood street when 139 cars are simultaneously exiting the parking lot. The Draft EIR dismissed the extraordinary traffic and parking impacts occurring on the High Holy ,Days by asserting that "such events are not typically subject to CEQA evaluation" (DEIR at 70) and their impact is insignificant (DEIR at 72). No authority or analysis was cited for these assertions. The FinalEIR does aclrnowledge that the Project includes a change in the-dual services on these days to single services which will clearly increase the traffic impacts in ways that are not considered in the EIR. Indeed, it admits that the traffic analysis "does not assess impacts of the single. service events on study intersections." (FEIR at 142). Moreover, the Coalition's comments also noted that the Draft EIR made no attempt to consider any mitigation for the impacts of this' extraordinary attendance, despite aclrnowledging that the Applicant's car pool and shuttle program is unlikely to work, the "possibility" that the lack of on-site parking is not in conformance with Town parking requirements, and the "inconvenience and nuisance to local residents." (p.71). This was contrary to the report of the Town's traffic consultant who did endeavor to develop mitigation (albeit inadequate). See Crane Report at 17. The Final EIR does not remedy any of these defects, and states that arrangements to "formalize" the use of off-site parking lots and the control of on-street parking "are implicit in the High Holy Days Traffic Control Measures." FEIR at 142, emphasis added. But, "implicit" is not good enough. 'CEQA requires that mitigation measures be specific Mayor Paul Smith Honorable Town Council Members Town ofTiburon June 12, 2006 Page 18 and enforceable. State Water Resources Control Bd.Cases (2006) 136 Cal.App.4th 674, 789, citing Sacramento Old City Assn. v. City Council (1991) 229 Cal.App.3d 1011, 1027 ("Public Resources Code section 21002 requires agencies to adopt feasible mitigation measures to substantially lessen or avoid otherwise significant adverse environmental impacts. .... For each significant effect, the EIR must identify specific mitigation measures; where several potential mitigation measures are available, each should be discussed separately, and the reasons for choosing one over the others should be stated"). Because the FEIR fails to do so, it cannot be certified. Aesthetics The Coalition's comments on the Draft EIR demonstrated the importance of adequate photo simulations in evaluating the Project's aesthetic impacts. As we noted, the only photo simulations are those prepared for the Applicant. They "do not show the proposed parking areas, access driveway, lighting, or landscaping" (DEIR at 99); they represent only a small number of viewpoints, and not necessarily those suffering the greatest impact (e.g., from Reedland Woods Way and Ring Mountain Preserve); and they do not address potential mitigation by planting trees or shrubs. The Final EIR's response to this comment is conclusory, and fails to remedy the problem. See FEIR, Response F44? Because the FEIR fails to remedy this omission, it cannot be certified. Noise The Draft EIR fails to provide information sufficient to determine the magnitude of the Project's noise impacts and the efficacy of its proposed mitigation. The Final EIR leaves these major questions unanswered, as shown below. First, the Draft EIR erroneously relies on "Ldn" noise readings which are completely inappropriate to evaluate the impact of this Project. As the Coalition's noise consultant Richard Carman pointed out, Ldn is utilized in assessing the impact of steady noises, such as freeway traffic. Ldn measures the average noise over a 24-hour period. Where, as here, the noise of late-night events would represent a one-time-spike in noise levels when compared with noise levels during the rest of the 24-hour period, utilizing the Ldn metric trivializes the obviously significant impact of late-night noises that awaken residents. The Planning Commission accordingly found that "the Draft EIR' s . use of the 24-hour average metric, 'Ldn' to assess the impact of intermittent noise spikes during the evening was not appropriate." Resolution No. 2006-16, ~ J, pp. 3-4. Because the DEIR's analysis of this Project's noise impacts is thus flawed, it cannot be certified. 2 The DraftEIR also wrongly claimed that the Project would have no impact on "[s]cenic resources" simply because there was no State scenic highway nearby. DEIR at 98; see also IS at 13. The Final EIR's response, that all "scenic resources" have been defined and evaluated, ignores this error. FEIR at 144. Mayor Paul Smith ' Honorable Town Council Members To'WIl of Tiburon June 12, 2006 Page 19 Second, the Draft ErR relies heavily on the biased data provided by the Applicant. The Applicant's data included "background" noise measurements curiously taken on the one day that three garbage trucks collect from. the neighborhood. Accordingly, the Applicant's suggested Ldn level is atypical. In seeming recognition of this flaw, the Final EIR suggests that different data would be collected for a further Ldn measure, but fails to explain how this data was collected and to disclose the resulting measurement. FEIR, p. 269, Response 2. Third, although the Final EIR now includes noise measurements taken at a nighttime event, it concedes that the event in question was not comparable to peak weekend events. FEIR at 29. No apparent adjustments were made to account for the noise impacts that would likely result from the peak weekend events. Fourth, although commenters requested evaluation of whether the Projecf s projected noise impacts would be magnified by the "bowl effect" created by the terrain in the vicinity of the site, the Final EIR simply provides abstract descriptions of what a "bowl effect" is, without making any effort to use that information to determine the extent to which noise impacts will be greater at this site as a result. See FEIR, Responses E33, PI? Finally, the proposed late night use is a new activity where no activity presently occurs. In this case, noise from both lots must be considered in order to measure the change in the level of noise from existing conditions.. Despite comments requesting that the noise impacts of the upper and lower parking lots be combined because they will be used simultaneously, the Final EIR refuses to do so. The response is confusing, appearing to justify its refusal to study this because one of the parking lots currently exists. See, FEIR, Response F48. This reasoning ignores the fact that th~ upper lot's noise will be added to the lower lot's noise when the two are simultaneously used, and this will be a direct impact of the Project expansion. The FEIR's failure to consider this cumulative impact violates CEQA. CEQA Guidelines~ 15130(a)(1). Air Quality The Draft EIR did not include any review of the impact on the surrounding neighbors of diesel exhaust emissions from equipment used in the construction of the Project. This impact was reviewed in the Initial Study and dismissed,as insignificant, but solely based on the treatment of diesel exhaust emissions as an "objectionable od~r." IS at 18. The Coalition pointed out that this discussion ignored the fact that diesel exhaust is a toxic air contaminant of serious public health concern, and it has been linked to a range of significant health p~oblems. Many young children reside in the area and would be exposed to this serious health risk. The Final EIR acknowledges that diesel exhaust can increase the risks of cancer, and reports on the EIR consultants' risk assessment Mayor Paul Smith Honorable Town Council Members T O'WIl of Tiburon June 12, 2006 Page 20 performed in another context and the current state of federal and stateregulations of diesel engines arid fuels. FEIR at 135. However, no risk assessment is provided in the Final ErR for this Project, and there is no substantiation for the conclusion that the federal and state'requirements will mitigate these impacts to a less than significant level. The fact that full implementation of federal and state plans will reduce cancer risks by 75 percent in 2010 and 85 percent in 2020 (FEIR at 135),does not tell us anYthing about what the risks will be in the nearer time frame when the construction of the Project will actually take place. Nor is there any substantiation for the conclusion that "[a]t most, people living near the project site would be exposed to intermittent diesel emissions for a few weeks." Id. F. The EIR Improperly Defers Mitigation. The Draft EIR failed to specify many of its mitigation measures, improperly deferring that task until after the public review process and the agency's approval of the Project. This violates CEQA. See Quail Botanical Gardens Foundation, Inc. v. City of Encinitas (1994) 29 Cal. App. 4th 1597, 1606, n. 4 (lithe City cannot rely upon post- approval mitigation measures adopted during the subsequent design review process"). The Final EIR contends that these measures all satisfy CEQA because they have "performance standards" that defme what the later design of the measure must achieve. FEIR at 22-23. This misses the point. The mitigation measures yet to be designed may themselves have impacts or may require other changes in the Proj ect which will have adverse impacts not studied in this EIR. The fact that these measures may have "performance standards" for the degree of impact reduction they are required to meet does not excuse this EIR's failure to evaluate the impacts of the measures themselves. For example, the Draft ErR proposed as mitigation "[a]bove ground detention or . . . the construction of an underground stormwater detention va'\llt," and states that "[f]urther analysis will be done at the design stage to size the detention pond to ensure that the pond attenuates peak flows to the appropriate level," and "[t]o assess any secondary impacts of the detention pond on slope stability." DElR at 48. This is an impermissible deferral of the assessment of the impacts of the mitigation measure. In this respect, it does not matter that the .measure must be designed to meet the "performance standard" of maintaining post-development 1 DO-year peak flows at the pre-development level. FEIR at 148. Without knowing whether the detention facility will be above- ground or below ground or how large it will be, there is no way of judging whether it will have impacts of its O'Wll or will cause a reconfiguration of other parts of the Proj ect. The Draft EIR required shuttle service for events of more than 360 people, but deferred analysis of the "secondary impacts at remote lots" to a later "Town~approved Mayor Paul Smith Honorable Town Council Members Town of Tiburon June 12, 2006 Page 21 Parking Plan." DEIR at 31. The Coalition commented that there is no showing that the shuttle service would work or that its secondary impacts would in fact be avoided. The Final EIR asserts in this instance that the "performance standard" is that the T ovm. will not allow any remote lots whose use causes "undue congestion." But this vague term is not otherwise defined, and it is entirely unclear what the impacts of these remote lots will be or whether they will be effective. Because the FEIR fails to provide this essential information, it cannot be certified. G. The EIR Does Not Consider a Reasonable Range of Alternatives The Draft EIR failed to consider alternative locations for the meetings or events for which the multi-purpose room is proposed, contrary to CEQA's requirement that a "reasonable range" of alternatives be considered in an EIR See Goleta II, supra, 52 Cal.3d at 566 (alternatives under CEQA typically involve either "different uses of the land under consideration" or "similar uses at different locations"); Laurel Heights Improvement Assoc., v. Regents of the University of California {"Laurel Heights II"), 6 Cal.4th 1112, 1142 (1994) (required consideration of a reasonable range of feasible alternatives was achieved in Draft EIR "by considering a wide variety of alternatives ranging from several different uses for the Laurel Heights site to different locations for the research laboratories"). Both the Draft and Final EIRs declined to consider alternative locations, stating that there were no feasible sites in Tiburon for construction of 13,395 square feet of building space. However, since thegreat majority ofKol Shofar's congregation resides outside of Tiburon, there was no reason to limit the review of alternative locations to Tiburon. Moreover, given that the Final EIR now proposes caps on the attendance and number of events in the expanded facilities, the EIR should have considered whetherKol Shofar's needs in light of these caps cou1~ have been met with either another organization's eXisting facilities or smaller new construction by Kol Shofar in Tiburon or elsewhere. Because the FEIR fails to provide this essential information, it cannot be certifi ed. H. The Final Em. Fails to Evaluate the Impacts of (1) IncreasedKol Shofar Membership Enabled by the Project and (2) Use of the Project at Full Capacity. The Final EIR has renege~ entirely on the promise made in the Initial Study on the Project that "[t]he EIR will assess impacts of future growth of the congregation as part of the cumulative effects of the project." Initial Study (IS) at 6. Elsewhere, the Initial Study stated that "[t]he EIR should include a history of the size of the facilities, size of the congregation, number of events and parties, etc. from 1984 to the present and into the future to understand the growth projections and the impacts of growth." Id. at 8 Mayor Paul Smith Honorable Town Council Members Town ofTiburon June 12, 2006 Page 22 (emphasis added). However, the 'Draft ErR did not address these issues, omitting the assessment of the impacts of continued growth in the membership of the Applicant. It also refused to conduct an evaluation of the impacts of the use of the facilities at full capacity. The Coalition's comments explained that CEQA requires evaluation of both the "growth inducing" impact of the proposed expansion of the existing facilities as well as the impact of the existing facilities at full capacity. This request was reiterated by two members of this Planning' Commission - the body that is charged by law with ~e Town's initial review of the proposal and the adequacy of the EIR - again to no avail. The Final EIR inexplicably rej ects these requests for this essential information "per the direction of the Town Planning Division staff." Response E7. This omission is a fatal flaw under CEQA. The Draft EIR conceded that any membership "[ e ]xpansion would result in additional traffic congestion and parking, noise, and visual impacts and potentially increasing land use compatibility inconsistencies." DEIR at 140. Yet these potentially severe impacts were not evaluated in. the Draft EIR on the premise that "[a]ny increase beyond the caps listed in Table 1 would require an amendment to the CUP and additional environmental review," and that "[i]t would be speculative to assume that the congregation would continue to grow or how much it might grow." DEIR at 16. The Draft EIR thus assumes that the Town can regulate future growth in the size of Congregation Kol Shofar. This assumption is questionable at best. Once the Town approves the facility's size, it is unlikely that the Town will be able to effectively regulate its future use. Certainly, the Town has no authority to regulate increases in the congregation's size. Therefore the Town must consider foreseeable increases in the congregation's population - and thus, the facility's level of use - before approving the facility. Because the FEIR fails to do this, it cannot be certified. To rectify this omission in the Draft EIR, Commissioner Collins requested, among other things, that the Final EIR list the number of members of the Congregation for each of the years from 1985 to 2004, for purposes of evaluating the likelihood that the expanded facilities would lead to a further growth in membership. The Final EIR summarily dismisses the request on the ground that "[ t]he EIR preparers do not have any information on Congregation size prior to 1995." FEIR at 8, Response El. Elsewhere, the document states that "this information was not provided by the applicant" (FEIR at 20-21), but it does not state that the EIR consultants even bothered to ask the Applicant for these figures. The Final EIR does not reflect any effort whatsoever to acquire this critical information regarding congregation size. Mayor Paul Smith Honorable Tovvn Council Members Town of Tiburon June 12, 2006 Page 23 Instead of being helpful, the Final EIR is argumentative. It asserts that "[b Jased on the past seven years, one could project a declining Congregation membership.'~ FEIR at 22. But this assertion ignores the fact that membership has steadily increased over the last twenty years and is now almost triple its original number. As explained in the DEIR, "[a]t the time the 1985 CUP was approved, Kol Shofar served 220 member units. . . and projected a 350 family maximum." DEIR, p. 125. The original CUP, thus, was premised on an ultimate maximum of 350 member units. By 1997, however, the congregation had grown to 137% of its estimated cap to "480 member units (totaling 1,523 people)." [d. In 1998, the membership number grew to 522 (or 1,609). By 1999, membership had grown to 542 member units. Id. In 2001, Kol Shofar had 609 member units, nearly three times the, estimated maximum number of potential member units on which Kol Shofar obtained its original CUP.3 The EIR's claim that such growth cannot be predicted to continue in the future is premised on a decline of only 11 member units over the past five years. This modest decrease is statistically insignificant when compared to the history of intense' growth in congregation size. A continued increase in congregation size cannot be dismissed as "speculative" because the congregation has a demonstrated capability and propensity of far surpassing estimates of ultimate congregation size. The expansion and enhancement of facilities and services makes it extremely, likely - rather than extremely unlikely, as the EIR preparers would have it - that the growth trend will continue. The slight decline in membership between 2001 and 2002 does not reduce that likelihood~ Ultimately, the Final EIR dismisses any evaluation of the potential impact of inducing membership growth by asserting that it is "speculative." Yet, it never responds to the fact that CEQA does not allow an agency to dismiss an impact evaluation as speculative ,without a showing that the agency has frrst thoroughly investigated th.e issue. CEQA Guideline section 15144 states that "[ d]rafting an EIR.. ~necessarily involves some degree of forecasting," and that "an agency must use its best efforts to find outand disclose all that it reasonably can." In turn, while section ,15145 allows an agency to terminate discussion of an impact if it is "too speculative for evaluation," the agency cannot reach this conclusion without conducting a "thorough investigation.,,4 3 In relation to the actual number of member units in 1985 (220), Kol Shofar grew 276% over the 16-year interval between the initial issuance of the CUP and the 2001 amendment. 4 In Citizens to Preserve the Ojai v. County of Ventura, 176 CaLApp.3d 421, 430 (1985), the court stated: . "Although the County was not required to engage in sheer speculation as to future environmental consequences . . ., the EIR was required to set forth and explain the basis for any conclusion that analysis of the cumulative impacts. .. was wholly infeasible and speculative." The court struck down an agency's attempt to escape analysis of an impact as speculative. The California courts have determined that an EIR for a proposed project must include analysis of the environmental effects of future action if: "(1) it is a reasonably foreseeable consequence of the initia~ project; and (2) the future expansion or action will be significant in that it will likely change the scope or nature of the initial projector its environmental Mayor Paul Smith 'Honorable Town Council Members Town of Tiburon June 12, 2006 Page 24 The Final ErR does not reflect any such ''thorough investigation" of this issue. In fact, the Final EIR contains no showing that the Town has used any effort - much less its best efforts - "to find out and disclose all that it reasonably can" about the Proj ect' s inducement of growth in membership. The Final EIR asserts that "[t]he number of new events and people accessing the site for such events are what will result in environmental impacts, not the size of the overall Congregation." FEIR at 21. But, of course, it is the membership for whom the events are planned and it is the membership that attends the events. A growth in membership necessarily means that there will be more people who will want to attend the events. There will be increased pressure on the Town to allow Kol Shofar to use its expanded facilities to adequately serve this increased membership. CEQA does not permit approval' of a project without evaluation of its foreseeable growth in usage, regardless whether future growth would require future approvals. Stanislaus National Heritage Project v. County of Stanislaus (1996) 48 Cal.AppAth 182, 195-206 (impacts of foreseeable future phases of a project must be examined when the project's fITst phase is approved, even though future phases would require additional approvals). Contrary to this principle, the FEIR as amended by its new Alternative 7 assumes that a cap of 250 per event will suffice to curb use of facilities accommodating up to 1,624 people.5 In view of the fact that Kol Shofar's Congregation already includes 1,860 people - prompting its request for these larger facilities - it is foreseeable that more than 250 members will be seeking to use them at these evening events. Because the FEIR fails to address this foreseeable impact, despite CEQA's clear requirement that it do so, the FEIR cannot be certified. ' The impact of foreseeable growth in use is probably greatest at the weekend services. The EIR assumes that both the sanctuary and the multi-purpose room will be used during these weekly events. 6 DEIR at 65. Even in the latest iteration of the Project proposed in Alternative 7, the limit on attendees would not apply to existing Saturday and effects." Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Ca1.3d 376, 396. In Laurel Heights, the court emphasized that the issue is not to be decided simply on the basis of ''whether the public agency or the project proponent had any definite plans" for action after the initial project. 47 Ca1.3d 376,396 (emphasis added). The court therefore held that other evidence was sufficient to establish the likelihood of expansion, despite evidence from the Regents that only they could approve a plan for future expansion of the facility and had not approved any such plan. 47 Ca1.3d at 397-398. The question is whether membership growth is a "reasonably foreseeable consequence" of the Project. 5 According to the FEIR at.p~es 208-210, the capacity of the existing sanctuary plus the multi-purpose room is 1,275 people. The lobby can accommodate 238 additional seats. An available canopy can shelter 225 people for the High Holidays. The sum of these three numbers, 1,275 + 238 + 225, is 1,624 people. 6 Because the remodeled sanctuary is slated to hold 550 persons, the multi-purpose room will be used for overflow seating. Mayor Paul Smith Honorable Town Council Members T own of Tiburon June 12, 2006 Page 25 Sunday morning services, all of which can exceed 250 people. Increased membership will cause increased weekly traffic and parking impacts. Although a maximum attendance of 400 people is predicted for Saturday services (DEIR at 66), this estimate may turn out to be similar to the 1985 estimate of a maximum 350 member units. Where the congregation surpassed its estimate before, it is likely to do so again. Without a reasonable forecast of the increases to the size of the congregation, the EIR fails to identify the growth inducing and cumulative impacts of the Project, contrary to CEQA. The Final EIR's reliance on "caps" as a means of avoiding environmental analysis does more than "hide the ball." It also seeks to predetermine how this Project must be regulated. Because no information has been provided about the impacts that could result from the sizing of these facilities, the Final EiR in effect seeks to compel the Town to use "caps" as the mitigation of Project impacts. With the full review required by CEQA, the Town would have the option of determining whether the Project's ultimate impacts required limiting the size of the expansion for which a CUP would be granted. The ErR must provide those ultimate potential impacts prior to mitigation to allow decisionmakers and the public a comprehensive understanding of the Project's impacts. In sum, there is nothing "speculative" about estimating the capacity of the expanded facilities to accommodate new members and activities. The analysis of the impacts enabled by approval of the proposed expansion cannot be deferred to a later amendment of the CUP. DEIR at 16. CEQA requires agencies to disclose all potentially significant impacts of a project so that decisionmakers and the public can consider the project and its entirety of impacts prior to taking a position on the worthiness of project. Sierra Club v. State Bd. of Forestry (1994) 7 CalAth 1215, 1229, quoting Laurel Heights 1, supra, 47 Cal.3d at 392 ("the environmental impac~ report is '''the heart of CEQA'" and the "environmental 'alarm bell' whose purpose it is to alert the public and its responsible officials to environmental changes before they have reached ecological points of no return"). TheFEIR here fails iIl its most basic mission of providing information about the ultimate impacts of the Project by preemptively trulicating its analysis of any future membership growth based on illusory "caps" on attendance in the new, larger facility. Because the FEIR fails to provide this essential disclosure, it cannot be certified. I. The FEIR's Responses to Comments Are Inadequate. The FEIR fails to address the profound deficiencies in environmental review that the Coalition has identified, depriving the Town and the public of a complete evaluation of the Project's impacts. Under CEQA, an EIR is not only an informational document, which must contain all pertinent information on environmental impacts of a project, but it is also a "document of accountability." Laurel Heights Improvement Ass'n v. Regents of the University of California, 47 Cal.3d 376,392 (1988). Thus CEQA requires that all information, and the decision making process of the agency, be fully public to protect Mayor Paul Smith Honorable ToWn Council Members Town of Tiburon June 12, 2006 Page 26 "not only the environment but also informed self-government." ld. This FEIR lacks this essential accountability. For example, the FEIR's responses to comments dismiss requests for relevant information as "unknown" or "unavailable" when such information could readily have been obtained from the Staff or the Applicant and is essential to understanding the Project's impacts. Response F3 states that the CUP conditions are "currently unknown" and will be determined "when the Town considers the merits of the project and whether a CUP amendment will be approved." FEIR at 131. However, the EIR counts on the conditions in the CUP to mitigate impacts. Without full disclosure and complete analysis of the specific mitigation measures in the ElR the public cannot consider and comment on the effectiveness of the conditions as mitigation measures. The response that the mitigation measure will be unknown until the Project is already approved impermissibly evades the public's valid request for critical, information. ( . Because the EIR does not provide information essential to an informed decision on the Project, and because the FEIR's responses to comments summarily reject requests for this information, the environmental review process has failed CEQA's requirements. Therefore, the FEIR cannot be certified. J. The Additional Information Submitted After the Release of the Draft EIR Requires that the EIR Be Recirculated CEQA requires that "[w]hen significant new information is added to an environmental impact report after notice has been given. . . and, consultation has occurred. . . , but prior to certification, the public agency shall give notice again. . . , and consult again. . . before certifying the environmental impact report." Public Resources Code section 21092.1. The last-minute revisions to critical components of the ~roject contained in the Appendix submitted by Kol Shofar (and most recently adopted by the Staff as Alternative 7 in the Staff Report prepared for the April 24, 2006 meeting) purportedly transform previously-significant impacts to insignificant impacts by simplistically reducing hours of operation and the number of events. FEIR Appendix at 1-2. The Appendix's conclusory dismissal of significant impacts is, however, arbitrary and not based on substantial analysis. ld. Additionally, the public never had sufficient time to respond to the Appendix's new conclusions because of the timing of the 11th-hour submission. An EIR cannot analyze a constantly moving target, and the public cannot be expected to keep up with last minute modifications by the developer. Quick alterations in CUP conditions do not rectify the fundamental deficiencies in the environmental report and public review process. Mayor Paul Smith Honorable Town Council Members Town of Tiburon June 12, 2006 Page 27 Under long-standing CEQA law, the addition of "significant new information" to the EIR analysis requires the agency to recirculate the revised EIR for additional commentary and consultation. CEQA Guidelines ~~ 15162-15163. Because this CEQA requirement was not met, the FEIR cannot be certified. 1. Traffic Neither the DEIR nor the FEIR evaluates the adverse impacts of Alternative 7, since -it appeared subsequent to these documents. Although, as the Planning Commission Staff Report on Alternative 7 related, "by reducing the number of new events and the maximum number of people that would attend the new events [compared to Alternative 6], Alternative 7 would reduce noise, parking and traffic impacts," these impacts would not be reduced to a less than significant level. April 24 Staff Report at page 4. As documented further in the comments from the Coalition's traffic engineer, Arul K. Edwin, the impact on traffic of allowing twelve Saturday night events to last until 11 p.m. rather than 9 p.m. may be significant for several reasons. First, introducing a massive pulse of traffic at 11 p.m. on a Saturday night will have a substantially greater impact on existing traffic conditions at that hour, than would a similar pulse of traffic occurring two hours earlier, at 9 p.m. Neither the Alternative 7 Analysis nor the draft and final EIRs, provides baseline information respecting the traffic levels present at 11 p.m. versus 9 p.m. on Saturday evenings. The likelihood of accidents resulting from this late-night surge of traffic is also greater than it would be for 9 p.m., because motorists are generally less alert in the late evening after the time when most would usually retire for the night. The Alternative 7,Analysis speculates about Caltrans' future assessment of this Proj ect' s impacts on the Tiburon BoulevardJBlackfield Drive intersection. Rather than conduct the required assessment of the Project's impact onthe TiburonBotilevardJ Blackfield Drive intersection now, this'report hypothesizes that "the impact might be less than significant with no mitigation required" "[b ]ased on theCaltrans review." Id., emphasis added. But Caltrans; review has not yet taken place. . Without Caltrans' assessment, or the Town's independent further review, it is impossible to predict the significance of the impacts, much less the efficacy of potential mitigation measures. The Alternative 7 Analysis is internally inconsistent. Its discussion of "On-Site Circulation Change" concedes that Alternative 7 "would not reduce the traffic safety impactresulting from turnarounds on residential streets to a less than significant level." ld. at p. 6, emphasis added. But the Analysis then proceeds to the opposite conclusion, that three proposed mitigation measures "would be sufficient to reduce the traffic safety impact of people turning around in,residential neighborhoods to a less than significant level." ld. at p. 7, emphasis added. Yet as the Planning Commission found in Resolution No. 2006-16, "the alternative mitigations put forth in Alternative 7to address the Project's deficient on-site parking are insufficient to off-set the basic problem of Mayor Paul Smith , Honorable Town Council Members Town ofTiburon June 12, 2006 Page 28 inadequate on-site parking, and simply spread or relocate impacts into surrounding neighborhood streets." Id. at' J, p. 4, emphasis added. The Alternative 7 Analysis sidesteps assessment of potentially significant traffic and parking impacts by speculating further that the elimination of parking lot ingress via Reedland Woods Way "would reduce traffic congestion on Reedland Woods Way and at the Reedland Woods Way/Blackfield Drive intersection." Id. at 6. The record does not support this claim. Alternative 7 would add twelve late-night traffic events on Saturdays, and fifteen evening events on Sundays. The addition of the very substantial traffic associated with these large events would increase, rather than "reduce," congestion on Reedland Woods Way. Compared to existing conditions, drivers unfamiliar with the proposed parking lot circulation pattern at the Kol Shofar parking lot might turn 'onto Reedland Woods Way from Blackfield Drive seeking to enter the parking lot from Reedland Woods Way. Those drivers would then need to make aU-turn or T-turn on Reedland Woods Way to return to Blackfield Drive. Turn-arounds on this quiet residential cul-de-sac would potentially have a significant impact on vehicular and pedestrian safety on that street, particularly in light of the substantial number of young children who reside there. The addition of these twenty-seven significant evening events would alSo. create congestion on Via Los Altos, the street that KolShofar proposes as the sole access point for on-site parking. The additional traffic congestion on this street would tend to create similar,turn- around scenarios on other local streets, as drivers who are turned away from a full parking lot at Kol Shofar, or seek to avoid the line of cars turning left from Blackfield Drive onto Via Los Altos, seek out other streets in the neighborhood for parking. Where parking is unavailable within a reasonable distance, these drivers can be expected to make V-turns and T-tums on these other streets, creating unsafe conditions for vehicles and pedestrians alike. :;:,::,.;;>". The three mitigations proposed in the Alternative 7 Analysis for the additional traffic/parking conflicts on surrounding streets are likewise speculative. The first of these mitigations, that "Kol Shofar shall place signs along its frontage on Via Los Altos, Blackfield Drive and Reedland Woods Way stating that people attending events at Kol Shofar need to park on-site and not on residential streets," may cause turn-arounds by the attendees who had intended to parkalong these streets until they observed these signs. Visitors arriving at night or in the rain may not see these unexpected signs at all. Others may choose to disregard the signs, since there is no proposed enforcement mechanism to dissuade them from doing so. The Planning Commission properly found that this supposed mitigation was illusory. Resolution No. 2006-16 at ~ J,p. 4. Mayor Paul Smith Honorable Town Council Members T own of Tiburon June 12, 2006 Page 29 The second proposed mitigation likewise poses more questions than it answers: This mitigation proposes that "Kol Shofar shall require that all invitations and notifications of these new weekend events include a note informing people to park on the site and not to park on residential streets." Alternative 7 Analysis at 7. But this mitigation rests on assumptions that remain unproven: (1) that all drivers will remember and comply with this request; (2) that there will be adequate room to accommodate them within the on-site parking lots; and (3) that they will not attempt to park elsewhere if traffic backs up at the Via Los Altos ingress point. Because the demand for parking depends on the vehicle occupancy rate, which necessarily varies from event to event, the proposed on-site parking may prove insufficient. Third, the Alternative 7 Analysis proposed a monitoring program covering "up to four events the first year after project completion" to assess the efficacy of the foregoing mitigation measures. But studying the effectiveness of these measures after the fact is akin to locking the barn door after the horse has been stolen. To be effective, mitigation measures must be certain and enforceable before the impacts occur, to prevent them. Sundstrom v. County of Mendocino (1988) 202 Ca1.App.3d 296, 306-308. "[T]he CEQA process demands that mitigation measures timely be set forth, that environmental information be complete and relevant, and that envirorimental decisions be made in an accountable arena" Oro Fino Gold Mining Corporation v. County ofEl Dorado (1990) 225Cal.App.3d 872, 884-885. Deferringevaluation of speculative mitigation measures to vague future monitoring efforts plainly violates CEQA' s requirement for certainty and enforceability before project approval. Accordingly, the Planning Commission properly found that this supposed mitigation measure "would not itself prevent significant unsafe turn-around impacts." ResolutionNo. 2006-16, ~ J, p. 5. In summary, it is clear that Alternative 7 is a substantial change in the Proj ect that poses potential significant impacts on traffic. Yet no additional professional analysis of the impact of these changes on traffic has been conducted. Instead, staff proposes speculative mitigation measures of dubious enforceability whose efficacy may never be known. The public is entitled, and CEQA demands, a proper analysis of and mitigation for these impacts. Because this has not been done, the FEIR cannot be certified. 2. Noise Alternative 7 would increase nighttime noise in a quiet residential neighborhood. The precise extent and impacts of this increased noise have not been adequately assessed. As Richard Carman, the Coalition's noise expert, pointed out in his separate comment letter, the analyses conducted in the DEIR utilized erroneous methodology. They relied on an inappropriate matrix, "Ldn," which is designed to assess the impact of Steady traffic noise, rather than intermittent disturbances such as the nighttime events that would be allowed under Alternative 7. By averaging the loud noises associated with crowds Mayor Paul Smith Honorable Town Council Members Town of Tiburon June 12, 2006 Page 30 departing Kol Shofar at 11 p.m. over the noise level during the remaining 23 (quiet) hours of the day, the DEIR and Kol Shofar trivialized the actual impact of these events. The Planning Commission agreed, finding that "the Draft EIR's use of a 24-hour metric "Ldn," to assess the impact of intermittent noise spikes during the evening was not appropriate." Resolution No.2006-16, ~ J, p. 4. Sweeping the problem under the rug does not suffice under CEQA. The Alternative 7 Analysis and the Staff Report conclude that the revised Alternative 7 Project would have a less than significant noise impact on its neighbors due to decreased frequency of activities and number of participants. The Alternative 7 Analysis compares Alternative 5 in the Draft and Final EIR to the new altemative~ stating, Alternative 5 required that all new weekend events end by 9:00 p.m., while Alternative 7 would allow the 12 new Saturday events to last until 11 :00 p.m. The reductions in the number of events and the number of people coming to and going from these events would offset the fact that 12 events would last 2 hours longer than allowed in the original alternative. Alternative 7 Analysis at 2. The so-called "offset" referenced above, however, makes no sense. The difference between a party that ends at 9 p.m. and a party that ends at 11 p.m. is enormous when one is referring to a quiet, family-oriented, residential neighborhood - not to mention the difference that 12 such parties per year make in significant noise impacts to surrounding neighbors. 'The analysis' conclusion that "this most recent modification [is] so small that it is difficult to conclude whether [the two projects' noise impacts] are precisely eqUivalent" arbitrarily ignores the significant nuisance of noisy celebrations continuing into the night when people are trying to sleep. Because the FEIR has failed to conduct an adequate noise assessment of the impacts of Alternative 7, it cannot be certified. 3. Parking Lot Access The significant changes to the proposed parking lot access and circulation plans contained in Alternative 7 represent a major modification to the Project that will cause new substantial impacts and requires recirculation. The traffic and safety impacts on Via Los Altos are summarily dismissed as inconsequential. Alternative 7 Analysis at 6. In addition, the Analysis itself identifies substantial increases to already significant impacts and potential new substantial impacts by stating.: While reducing congestion on Reedland Woods Way, this change would not reduce the traffic safety impact resulting from turnarounds on residential streets to Mayor Paul Smith , 'Honorable Town Council Members Town of Tiburon June 12, 2006 Page 31 a less than significant level. In fact, because drivers will be unable to access the parking lot from Reedland Woods Way, drivers who are unfamiliar with the parking lot circulation'pattern may turn onto Reedland Woods Way, discover they cannot enter the parking lot from this street, and then make a u-turn to return to Blackfield Drive. Alternative 7 Analysis at 6. In addition, the Analysis identifies another new substantial impact to safety resulting from the new circulation plan: Other drivers whose intent was to drop someone off at the site may decide to turn onto Reedland W oods Way and drop their passengers off at the sidewalk rather than have to negotiate driving through the parking lot; these drivers would also make a u-turn on Reedland Woods Way. ld. The analysis provides that "[0 ]ther mitigations" would address these new "traffic safety impact of people turning around on residential streets," but the mitigation measures referred to are inapplicable to the problems identified by the Analysis. Alternative 7 Analysis at 6-7. 4. Tiburon BoulevardIBlacldield Drive The new information only adds more confusion to the analysis of the impacts of the Project on the intersection of Tiburon Boulevard and BlackfieldDrive. In violation of CEQA, the EIR does not state whether or not traffic impacts will be significant; rather the Report simply defers the question to Caltrans for further study. The Alternative 7 Analysis goes so far as to suggest that the Town and Caltrans could, after the Project is already built, jointly "monitor the impact of new proj ect weekend peak traffic at this intersection in order to determine the actual traffic impact." Report at 4. If all impacts could be resolved so easily, then there would be no need to conduct any CEQA analysis prior to approval of the Project. CEQA, however, requires that all impacts of the Project be clearly identified in the CEQA analysis prior to certification and approval. Therefore, the EIR's failure to provide vital information and conclusions regarding the traffic impacts of the Project violates CEQA. In addition, the Staff Report suggests a mitigation measure that could itself produce new, significant impacts. The Report refers to the proposed Mitigation Measure 3.3-A.4, "which is to adjust the signal length and/or signal phasing to allow sufficient time for left turns to clear the intersection during the one-hour weekend peak period from 6:30 pm to 7:40 pm." Report at 4. This proposal does not address the impacts such an alteration would have on through traffic traveling on Tiburon Boulevard during these peak weekend hours. The proposed mitigation measure thus raises a new, potentially significant impact on traffic conditions in Tiburon, requiring recirculation of the analysis. Mayor Paul Smith Honorable Town Council Members Town of Tiburon June 12, 2006 Page 32 5. Parking Signs The new mitigation measure, potentially restricting parking on nearby streets through the use of signs, raises many new substantial impacts to surrounding areas of the neighborhood that will not be marked "resident parking only." Report at 5. Such new impacts from these new mitigation measures require analysis and recirculation of the environmental review. 6. Additional Capacity in the Parking Lot The Staff Report suggests that "additional parking spaces could be provided based upon a more careful study of parking layout." Report at 6. Further, Staff suggests that "Mitigation Measure 3.3- B4 could be reworded to require that on-site parking be increased as much as possible. . .. ',' Id. These new niitigation suggestions are vague, defer critical analysis until some point in the future, and raise new unstudied, potential impacts related to aesthetics, circulation, on-site safety, lighting, and noise. Again, the late disclosure of significant new features of, or substantial new information about, the Project requires recirculation and highlights the still vague and ever-changing description of the Project. 7. Saturday, Sunday and High Holiday Services' Impacts The Alternative 7 Analysis states that the new alternative "would be sufficient to reduce the traffic safety impact of people turning around in residential neighborhoods to a less than significant impact." Alternative 7 Analysis at 7. This conclusion ignores, as has the entire environmental review process, the safety, traffic, and parking impacts - both cumulative and growth inducing - on the surrounding neighborhood of the increased participation in Saturday and Sunday services. These impacts are likely to occur based on the vastly 'expanded capacity of the Project. 'An estimate, given by the Applicant, that maximum attendance will probably only reach 400 attendees at'these services does not satisfy CEQA' s call for thorough forecasting and study of all foreseeable impacts. Even assuming that the congregation size does not grow in the future - a rather unlikely outcome given past rapid growth - attendance at regular services from the current congregation of 598 families is likely to increase because of the expanded seating capacity afforded by the multi-purpose room addition. Similarly, Alternative 7 does not address, or remedy, the lack of analysis of the impacts of conducting single services on High Holidays. The additional materials also do not suggest mitigation measures that would minimize the extreme impacts of single services. Thus, the DEIR, the FEIR, and now this Alternative 7 Analysis, all fail to adequately identify the impacts of High Holiday single services or attempt to address how the impacts of these truly massive events will be controlled. Although the maj or Mayor Paul Smith Honorable Town Council Members Town of Tiburon June 12, 2006 Page 33 events will only happen three times a year, CEQA still demands that the impacts of those events be fully disclosed, discussed, and analyzed to ensure informed decisionmaking. CEQA contains no religious exemption for discussion of impacts. Without analysis of these impacts, the EIR fails in its most critical role of providing information to the public and the decisionmakers. Although the Saturday, Sunday, and High Holiday events are religious in nature, the impacts of those events must still be identified, and if significant, reduced to insignificance through mitigation measures through the CEQA process. The EIR here, including the Alternative 7 Analysis, fails to provide adequate information on these central impacts of the Project. 8. Lack of Alternatives Again, Alternative 7 simply pares down uses of the new Project facility, but does not present a true alternative to the Proj ect. N one of the so-called alternatives presents a feasible alternative to construction of the multi-purpose room. As with many similar faulty analyses, the root of the alternative defiCit lies with the overly narrow Project goals and purposes. By artificially constraining the purposes of the Project, the Applicant predetermined the outcome of the alternative selection. Thus, the FEIR, including the new Alternative 7 Analysis, does not satisfy CEQA's call for a searching investigation into alternatives that would have fewer impacts on the surrounding residential neighb<?rhood. 9. Malleable Conditional Use Permit Limits Are Illusory Mitigation Measures The FEIR, including the Alternative 7 Analysis, impermissibly relies on illusory CUP constraints to minimize impacts of the Project expansion. For example, the analysis contends that there will be no, parking deficits if the Tovvnlimits event maximums by the proper amount. The analysis discounts the malleability of the CUP conditions and thereby truncates all discussion of the actual i.lp.pacts of the Project at full build-out and capacity. Nothing in this mitigation packet constrains use of the Proje,ct facilities in the future if and when the Applicant seeks a change in the CUP conditions at a later date. The promise offuture environmental studies for these foreseeable increases represents a clear case of improper segmentation of the Project's overall impacts. CEQA requires that all impacts afthe entire Project be identified and analyzed prior to construction of the physical building, not in piecemeal future reviews as, CUP conditions are relaxed. Mayor Paul Smith Honorable Town Council Members T own of Tiburon June 12, 2006 Page 34 II. CONCLUSION The proposed Project is simply too large for its intended site. The FEIR's many errors and omissions as documented above hinder, rather than advance, public dialogue about how to solve this mismatch. An EIR that squarely and thoroughly addresses these errors and omissions may provide the answers needed to permit resolution of the traffic, parking, noise, light, aesthetic and neighborhood compatibility impacts identified above. Without a proper FEIR, this task is much more difficult, if not impossible. Accordingly, this Council should decertify the FEIR and remand this matter to the Planning Commission with directions to prepare a proper environmental analysis consistent with CEQA's requirements. scv:taf cc: Tiburon Planning Commission APPEAL #2: TIBURON NEIGHBORHOOD COALITION I. Summary of EIRDeficiencies (pp. 2-7) Issue #1: Noise Impacts (p. 2) Staff Response: The Tiburon Neighborhood Coalition (TNC) appeal states that the Final EIR does not adequately address the noise impacts from short-term events, and, instead relies on the Ldn averaging standard for assessing impacts. The appellant is incorrect. This issue was specifically addressed in Master Response 7 at pp. 43-46 of the FEIR. As clearly stated in that master response, the short-term noise impact from people arriving at and leaving new nighttime events was identified as a significant and unavoidable impact of the project as originally proposed and for Alternative 6 that was addressed in the FEIR. Contrary to the appellant's assertion, the FEIR explicitly did not rely solely on the Ldn metric to assess noise impacts. The appellant is also incorrect that the FEIR did not examine measures to reduce this significant noise impact. The Final EIR identified a project alternative (Alternative 7, which is a variation on Alternative 5 assessed in the . DEIR) that would reduce this noise impact to a less than significant level. In this case, as well as other items cited in this letter, the Planning Commission disagreed with certain conclusions of the FEIR and explained the rationale for those conclusions in the Findings of its Resolution 2006-16. This process is entirely consistent with CEQA. Issue #2: Parking (pp. 2-3) Staff Response: The appellant states that the FEIR did not adequately address and mitigate project parking impacts. The FEIR did not find the project would generate significant parking impacts. The DEIR did find that people accessing the project would turn around in residential neighborhoods and that this would be a significant and unavoidable traffic safety impact. The Planning Commission in Resolution No. 2006-16 concluded that the EIR -recommended mitigations for parking to address the turnaround impact were infeasible and that the additional measures provided in Alternative 7 were also insufficient to mitigate the impact. The Planning Commission reached these conclusions after taking testimony on the project and reviewing all material including the Final EIR. CEQA does not require that a Final EIR reach the same conclusions that the decision-making body reaches when making a decision on a project. CEQA clearly provides for the decision-makers to reach a different conclusion regarding impacts than that stated in the Final EIR. This is the purpose of developing the Findings for the project. The Findings explain how the Planning Commission reached its conclusion based on the Entire Record before it. CEQA explicitly does not require that the Final EIR then be revised to reflect the Findings. In this case, as well as other items cited in this letter, the Town Planning Commission disagreed with certain conclusions of the FEIR and explained the rationale for its conclusions in the Findings. This process is entirely consistent with CEQA. Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 8 EXHIBITB The appellant further states that the EIR states that project-generated vehicles can park on the street rather than on-site, which is a direct violation of the Town Zoning Ordinance. The cited page 67 of the DEIR clearly states that inadequate on-site parking would result in people parking on streets in the area and that would result in a significant and unavoidable traffic safety impact. The DEIR found that the impact on parking per se would be a periodic nuisance but not a significant environmental impact. No evidence has been provided that would cause the EIR preparers to change these conclusions. The question of consistency with parking requirements set forth in the Zoning Ordinance is a matter that Town decision makers must address. The appellant ignores the fact that the EIR mitigation requires that new events be limited to the number of people whose cars can be' accommodated with on-site parking, or, if more people would attend that adequate off-site parking in a parking lot be provided. The EIR does not mitigate project parking by stating that people can park on public streets. However, the EIR recognizes that such parking may occur regardless of whether there is adequate on-site parking, or off-site parking provided at a remote parking lot. The appellant states that the EIR does not address the Zoning Ordinance requirement that a Town-approved covenant be obtained for off-site parking. For Alternative 7, no off-site parking is needed except for the High Holy Day (HHD) services. The applicant currently uses off-site parking lots for these services as required under the existing CUP. The project, if approved, would only change the times of use of these lots during the HHDs (Le., reducing the amount of time the lots would be used by consolidating the services). It is assumed that the existing CUP is consistent with the Zoning Ordinance. The Town would need to ensure compliance with Zoning Ordinance requirements. The language cited by the appellant is directed towards projects where off-site parking would occur on a continual basis (e.g., where one business contracts with another business to allow its customers to park at that second business). The cited parking provisions are therefore not applicable to this project. The appellant states that the EIR does not assess simultaneous parking demand. The Tiburon Neighborhood Coalition's former attorney raised this same issue, which was fully responded to in Response F35 (p. 140 of the FEIR). The appellant makes no reference to this response nor provides any reasons why that response was not a~equate. The appellant continues to disagree with the Town's direction to the EIR preparers on how to assess parking vis-a.-vis the Zoning Ordinance and the EIR analysis. This disagreement is noted for the record. Again, it is Town decision-makers who are the ultimate arbiter regarding a project's consistency with the Town General Plan and Zoning Ordinance. However, the appellant's disagreement with the information provided in the EIR does not make the EIR inadequate. The appellant's opinion regarding consistency with the Zoning Ordinance will be one factor the Town considers, when making a decision on the proj ect. The appellant states that contrary to the repeated requests of TN C, the EIR does not assess the timing and intensity of different proposed uses. This is incorrect. The EIR assesses the impacts of all combined uses when assessing noise, traffic, visual, and other Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 9 impacts. Specific to parking, Table 5 (p. 66 of the DEIR) specifically addresses the parking demand for a combination of events. The maximum simultaneous parking demand for all events except the High Holy Day Services is presented in Table 5 in the DEIR. Issue #3: CEQA requires the EIR to mitigate to insignificance the project's conflicts with the General Plan (pp. 3-4) Staff Response: The appellant states that the EIR does not address or mitigate the project's conflict with General Plan goals and policies aimed at preserving the character of the existing neighborhood. The appellant is incorrect in stating that the EIR did not discuss inconsistencies of the project with the General Plan. See pages 129-138 of the DEIR and pages 6-20 of the FEIR. It is again noted that it is the Town's responsibility to ultimately determine the consistency of a project with the Town's General Plan. The Planning Commission, based on its review of the Entire Record, found the project inconsistent with several goals and policies. As described above under Issue # 2 above, the EIR need not be consistent with the Findings of the Planning Commission and/or Town Council may disagree with conclusions reached in the EIR. Issue #4: Traffic and Circulation (pp. 4-5) Staff Response: The appellant states that the EIR does not address or mitigate significant impacts on traffic and circulation, namely that late night weekend traffic would increase hazards to drivers and pedestrians. The EIR did not find that project-generated traffic would cause a significant traffic safety hazard for other drivers. The appellant has provided no information that this traffic would significantly affect congestion on local streets and cause a traffic safety hazard as regards other drivers. The EIR did find a significant safety impact to pedestrians resulting from increased turnarounds in residential neighborhoods. However, the FEIR concluded that additional traffic mitigations would reduce this impact to a less than significant level. The Planning Commission, based on its review of the Entire Record, disagreed with this conclusion. However, as already stated, the EIR need not be revised to be consistent with the Findings of the Planning Commission. The EIR was independently prepared to provide information to be used by Town decision-makers. Simply because the Town decision-makers disagree with an EIR conclusion does not render the information presented in the EIR incorrect; rather, it indicates that the Town decision-makers, based on their review of the Entire Record and their experience as residents of the Town, determined that certain mitigations were not feasible and/or that certain impacts would, in their opinion, be or remain significant. The Planning Commission adopted Findings that explain how it reached conclusions that differed from conclusions reached in the EIR. This is the role of the Planning Commission in reviewing the EIR and other data submitted, but the Commission's different conclusion does not indicate inadequacy of the EIR. When the Planning Commission (or the Town Council) reaches a different conclusion or requires different Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 10 mitigation measures than included in the EIR, CEQA does not require that the EIR be revised to be consistent with the ultimate Findings on the project. The appellant also states that the impact of increased turnarounds would have a significant traffic safety impact that would be inconsistent with a number of General Plan goals and policies. The appellant again notes that the EIR is inadequate because it does not assess inconsistencies with the General Plan. As previously stated, the EIR does assess project inconsistencies with the General Plan. The Town decision-makers have ultimate authority for assessing consistency. If they determine that the project is inconsistent with additional goals and policies not identified in the EIR, this does not make the EIR inadequate. These Findings on General Plan consistency are a part of the Entire Record the Town considers in making a decision on the project. Issue #5: Light and Glare (p. 5) Staff Response: The appellant states that EIR -recommended mitigations for headlight intrusion are inadequate and the impact remains significant. The EIR concluded that headlight intrusion would be mitigated to a less-than-significant level; the Planning Commission disagreed as set forth in Resolution 2006-16. The appellant again concludes that the EIR is inadequate because the Planning Commission reached a different conclusion than the EIR and found that the EIR- recommended mitigations were inadequate. As previously stated, the Planning Commission has the authority to reach such a conclusion based on its review of the Entire Record. However, there is no requirement that the EIR reach the same conclusions, nor that the EIR must be revised to be consistent with those conclusions. Issue #6: Alternative Locations (p. 6) Staff Response: The TNC appeal criticizes the EIR for failing to analyze additional off- site alternatives. Congregation Kol Shofar has responded to this issue in greater detail in a letter dated August 22, 2006 that is attached as Exhibit 7 to the Staff Report. The EIR pointed out that the appropriate analysis is "not an assessment of existing uses of the site, only proposed additional improvements and uses." (Draft EIR, p. 155.) The EIR thus analyzed potential off-site locations that could accommodate just the proposed additions analyzed in the EIR (listed as 13,395 square feet of building space). The EIR correctly points out that there are no suitable sites in the Town to accommodate the addition of four classrooms and the multi-purpose room. The EIR also states that "constructing the multi-purpose room elsewhere in Tiburon is not feasible because there is not a suitable non-residential site and because adequately sized residential sites are either not for sale, have existing development plans, or have neighboring residential uses (where impacts could be expected to be similar to those identified for the proposed project)." (Draft EIR, p. 155.) Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 11 Issue #7: Project Description (p. 6) Staff Response: The TNC appeal states that revisions to the project (resulting in what is called Alternative 7) are confusing and do not provide a legally adequate project description. First, it is noted that Alternative 7 is a variation on a project alternative (Alternative 5) assessed in the EIR. The only additional change is a change to the parking lot circulation pattern, which was made at Town staffs request in an attempt to address concerns from residents of Reedland Woods Way. It should be noted that this changes leaves the parking lot circulation very similar to what exists currently. Otherwise, Alternative 7 is simply a reduction in the number of new weekend events and the number of people allowed at events. It is not clear how these elements, which were assessed in the Alternatives Analysis section (pp. 143-159 of the DEIR) and in Master Response 1 (pp. 3-6 in the FEIR), are a ".. . confusing, indeed dizzying array of project features and impacts. . ." The appellant has provided no specific examples of any confusion, and, instead, has provided very specific comments and critiques of Alternative 7. Finally, the public had ample time to review and provide comments on Alternative 7. Numerous verbal and written comments were received and considered by the Planning Commission prior to reaching its decision. Issue #8: Growth in the CKS Membership (pp. 6-7) Staff Response: The appellant states that the EIR does not address how the project will induce growth in the Kol Shofar congregation. This issue was previously raised by TNC and thoroughly responded to in Master Response 3 (pp. 20-21 in the Final EIR) along with Responses F13 (p. 133), and F18 through F21 (p. 134) The appellant has provided no additional information that would require the EIR preparers to modify those previous responses. To reiterate the conclusion of Master Response 3: It would be speculative to project the Congregation's growth based on the proposed project. One might argue that the new buildings would enhance the facility thereby increasing the Congregation's membership, or one could argue that the number of people participating in services and functions is based on the strength of the rabbis, the Congregation's leadership, and/or the Congregation itself It would be speculative for the EIR pre parers to determine to what degree either of these points of view is correct. In addition, tlie membership has been declining since 1998. Based on the past seven years, one could project a declining Congregation membership. More importantly, the EIR assesses the impacts of the proposed project which is to add new facilities and allow expanded uses of the site in those new facilities. The number of overall Congregation members does not affect the analysis. Rather, it is the number of new events held on the site and how many people attend those events. The number of new events and people accessing the site for such events are what will result in environmental impacts, not the size of the overall Congregation membership. The Conditional Use Permit (CUP), if Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 12 approved, would establish caps (or limits) on how many events can occur on any given day and how many people can be on the site during these events. These caps are not part of the existing CUP. Several appellants have stated that an increased membership could result in future requests to amend the CUP to allow more events or more people to attend events. However, as noted above, it is speculative that the Congregation membership would increase. More importantly, any increase in the number of events or the number of people allowed to attend events would be permitted only after future environmental review and Town approval of the CUP revision. It is speculative to conclude that the membership would increase and/or that KS would seek further revisions of the CUP. II. Detailed Discussion of the DEIR and FEIR Deficiencies (pp. 7-33) Issue A: FEIR fails to address inconsistencies with the General Plan or to properly categorize those inconsistencies as significant environmental impacts (pp. 7-10) Staff Response: The TNC appeal asserts (at p. 7) that the "Final EIR's treatment of the Project's consistency with the General Plan violates multiple tenets ofCEQA." This argument is based on a flawed notion: that a potential inconsistency with the Town's General Plan undermines the previously certified EIR for the projec~. In refuting the TNC assertions, Staff offers the following points: 1) CEQA does not require an EIR to draw conclusions regarding the underlying project's consistency with a general plan. First, CEQA Guidelines section 15125, subdivision (d), provides that an EIR "shall discuss any inconsistencies between the proposed project and applicable general plans. . .." In addition, Appendix G of the CEQA Guidelines requires a lead agency to analyze whether the project would "[c]onflict with any applicable land use plan, policy, or regulation of an agency with jurisdiction over the project (including, but not limited to the general plan. . .." Thus, CEQA requires an EIR to discuss~ rather than draw final conclusions regarding, the project's consistency with applicable general plans. Both the Draft EIR (DEIR) and Final EIR (FEIR) for the Project contained an adequate analysis of the proposed proj ect' s consistency with the Town's General Plan, pursuant to Guidelines section 15125, subdivision (d). The DEIR discusses the proposed project's consistency with the Town's old General Plan on pages 129-138. The DEIR also states that "[d]eterminations of inconsistencies with [the Town] 'General Plan or other plan policies are a legal decision. . ." to be made by elected Town decision-makers, not by the EIR consultant or planning staff. (DEIR, p. 128.) Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 13 On pages 6-20, the Final EIR provides a discussion of the proposed project's consistency with the Town's new General Plan. While the Town did request that the consultant complete this analysis, the EIR need not make final determinations of General Plan consistency. Such determinations are "quasi-legislative" in nature and require the Town to evaluate whether the project as a whole will further the objectives and policies of the general plan and not obstruct their attainment. Perfect conformity with the General Plan is not required. Rather, a general plan must try to accommodate a wide range of competing interests - including those of developers, neighboring homeowners, environmentalists, and providers and recipients of all types of city-provided services. Once a general plan is in place, it is the province of elected city officials to examine the specifics of a proposed project to determine whether it would be "in harmony" with the policies stated in the plan. The Final EIR properly acknowledges that the Planning Commission and Town Council bear the ultimate responsibility to determine consistency with General Plan goals and policies (FEIR, p. 6.). "Recognizing the difficulty of determining the intention of the General Plan, many jurisdictions do not require or even allow the EIR to include such a consistency analysis, as it is not required by CEQA and determining consistency is finally the responsibility of the jurisdiction's decision-making body." The TNC appeal also argues that "[t]he Final EIR inexplicably changes the conclusions of the Draft EIR regarding key inconsistencies with the General Plan and Zoning Code." (TNC letter, p. 10). Because the Town adopted a new general plan during the time period between the DEIR and FEIR, the FEIR appropriately analyzed consistency of the project with the new general plan. Thus, the analysis in the FEIR is not "directly undermined by the analysis in the DEIR," as TNC suggests, because CEQA permits the analysis and conclusions to change in order to reflect the Town's updated general plan policies. Furthermore, nothing in CEQA would prohibit a change in the analysis from the DEIR and the FEIR. The change is supported by evidence in the record, including written comments submitted in response to the DEIR. 2) A project's potential inconsistency with a general plan is not per se an environmental impact. The appeal, at p. 8, asserts that "[t]he [p]roject will violate requirements of both the General Plan and the Zoning Code and therefore poses significant impacts." This argument is not persuasive. A project's inconsistency with a general plan is not a significant impact per se, since violation of a plan is a policy decision, rather than a physical impact on the environment. Relying on Citizens Assn. for Sensible Development of Bishop Area v. County of Inyo (1985) 172 Ca1.App.3d 151, 175, TNC contends that determinations of inconsistency require analysis in the EIR. In fact, that case held that an alleged inconsistency with a Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 14 specific provision of the General Plan did not require the preparation of an EIR (i.e., was not a significant impact), because the project appeared consistent with the broad objectives of the plan. In effect, the court deferred to the legislative body's determinations of General Plan consistency and the proper balance between the various policies in the plan. The TNC appeal also cites, at p. 8, The Pocket Protectors v. City of Sacramento (2004) 124 Ca1.App.4th 903, 930 to claim that an inconsistency with the General Plan is "ipso facto a significant environmental impact, which had to be considered as such in an EIR." That is a somewhat misleading description of the case. The Pocket Pr.otectors court was reviewing a lead agency's decision to adopt a negative declaration instead of prepare an EIR; a very different context. The court held that an inconsistency with the General Plan is substantial evidence to support afair argument that the project may result in a significant environmental impact (which is the test for whether to prepare an EIR). Here, the Town has certified an EIR for the proj ect, which means that the fair argument standard and the Pocket Protectors holding do not apply. In its responses to comments submitted on the DEIR, the Town emphasized that the Planning Commission (or Town Council) is responsible for determining consistency with the Town General Plan, and that a determination of inconsistency is not per se a significant environmental impact. Response F69 states that "[t]he Town of Tiburon has historically not considered inconsistencies with [general plan] policies as environmental impacts." (FEIR, p. 149.) In Response G21, the Town states that "[general plan consistency] analysis is not required for an EIR and that potential inconsistencies are not environmental impacts." (FEIR, p. 168.) In Response H20 of the FEIR, the Town recognizes that the evaluation of the proposed project's consistency with the General Plan is strictly within the purview of the Town. While the EIR consultant's conclusions regarding the proposed project's consistency with the General Plan may be worthwhile as a preliminary review, these conclusions are at best advisory, and even then do not, in certain circumstances, properly balance the competing policies at stake in determining a project's consistency with the Town's General Plan. (FEIR, pp. 180, 185.) The DEIR clearly states that "[ d]etermination of inconsistencies with General Plan or other plan policies are a legal decision and not an environmental impact (since a plan is not a part of the physical environment." (DEIR, p. 128.) "However, inconsistencies or potential inconsistencies with plan policies can point to potentially significant impacts on the environment." Each of the potential inconsistencies with the Town General Plan cited in the TNC appeal is addressed below: . OSC-2 in the old General Plan and LU-5 in the new Plan ("new development shall be in harmony with adjacent neighborhoods and open space ") Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 15 The DEIR stated that the project may be inconsistent with policy OSC-2 of the old General Plan, stating that "the project will alter views in the area and new non-residential buildings and parking areas could be considered to not be 'in harmony' with surrounding single family residential uses." (DEIR, p. 130.) The FEIR, however, concluded that the project would be consistent with policy LU-5 of the new General Plan. "As in the case with the Findings the Town adopted when approving the Conditional ,Use Permit for expanding the St. Hilary Church and school, the new multi-purpose room and classrooms are extensions of an established use of the property for school and church purposes. The project would not be expected to change the identity of the surrounding neighborhood." (FEIR, p. 8.) There is additional evidence to support a finding that the project is consistent with policies OSC-2 and LU-5. The Planning Commission, in Resolution No. 2006-16 did not find the project inconsistent with policy LU-5. In addition, it is unclear what environmental impact is implicated by Policies OSC-2 and LU-5. Since there is no clear physical impact associated with these policies, a finding of inconsistency would not necessarily have a significant environmental impact. Further, a determination of whether the proj ect is "in harmony" with the surrounding neighborhood is ultimately a policy decision reserved for the Town decision-makers. . Policies C-C in the old and new General Plans (Hto maintain all existing, as well as to design all future, residential streets with consideration of residents' safety, cost of maintenance, and protection of residential [quality oflifeJ") The DEIR concluded that the project may be inconsistent with Goal C-C of the old General Plan because "[t]he project will increase safety hazards on at least Via Los Altos and Reedland Woods Way. Increased vehicle use on streets and in parking areas will increase traffic-generated noise that will affect nearby residents. People attending large events will park in residential neighborhoods." (DEIR, p. 133.) The Planning Commission found the project inconsistent with Goal C-C in the new General Plan because it found the proposed mitigation measure for the turnaround impact to be infeasible (p. 4 of Resolution No. 2006-16). The Planning Commission's suggested solution was to increase the supply of on-site parking to both mitigate impacts and achieve consistency with this General Plan goal. . OSC-ll in the old General Plan and OSC-35 in the new Plan (" . . . grading shall be kept to a minimum and every effort. . . made to retain the natural features of the land including. . . trees. . .. ") Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 16 The DEIR found that the project is potentially inconsistent with policy OSC-ll of the old General Plan, however, it states that "[g]rading and tree removal are minimal for a site in Tiburon." ''Nevertheless, the project does include grading which will alter the natural topography of the site, though the natural topography of the site has already been substantially altered by past bench grading done to allow construction of the former school on the site. The project would remove 11 trees, of which only one is a native tree." (DEIR, p. 131.) In the revised consistency analysis, however, the FEIR concludes that the project would be consistent with policy OSC-35 of the new General Plan. (FEIR, p. 13.) "Grading would be minimal for Tiburon development, involving cutting and filling of 650 cubic yards of material. Otherwise, the project does not affect other significant natural features of the site." The Planning Commission did not fmd ~e project inconsistent with Policy OSC-35. 3) The DEIR and FEIR adequately addressed potential inconsistencies with the Town Zoning Code. Similarly, the ultimate decision regarding a project's consistency with the Town Zoning Ordinance is a policy decision reserved for the elected decision-makers. Thus, an EIR may identify and analyze potential inconsistencies, but these determinations are advisory only. Moreover, a potential inconsistency with the Town Zoning Ordinance is not an environmental impact per se. As the following discussion demonstrates, there is substantial evidence to support a Town Council finding that no significant environmental impact would result from the project's potential inconsistency with the Town Zoning Ordinance. Each of the potential inconsistencies with the Town Zoning Ordinance cited by lNC is addressed below: . Section 4.02.06(d) (Site Plan and Architectural Review) ("[tJhe height, size and/or bulk of the proposed project bears reasonable relationship to the character of existing buildings in the vicinity. A good relationship of a building to its surroundings is important. . For example, in neighborhoods consisting primarily of one-story homes, second-story additions shall be discouraged, or permitted with increased setbacks or other design features to minimize intrusion on the neighborhoods. ") The DEIR concludes that the project is potentially inconsistent with Section 4.02.06( d) because "[t]he proposed non-residential buildings and parking facilities are out of character with surrounding residences." (DEIR, p. 136.) The DEIR acknowledges, however, that "they are consistent with existing uses on the sit[ e] and the historic usage of the property." Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 17 The Planning Commission found that the project is consistent with Zoning Ordinance Section 4.02.06(d). As noted in the DEIR and in the August 5,2005 letter submitted on behalf of the Congregation, the proposed project is consistent with the historical use of the property, and the visual impacts of the project are relatively minor. (DEIR, pp. 136, 93-97.) Therefore, there are no significant environmental impacts associated with the project's potential inconsistency with Section 4.02.06(d). . Section 4. 04. OO(a) and (b) (Conditional Use Permits ('twhether the location proposedfor the Conditional Use Permit appliedfor is properly related to the development of the neighborhood as a whole" and Hwhether the location proposed for the Conditional Use Permit applied for would be reasonably compatible with the types of uses normally permitted in the surrounding '') area. Staffbelieves the appeal and the DEIR both intended to refer to Sections 4.04.02 (a) and (b) of the Zoning Ordinance. The DEIR states that the project is potentially inconsistent with subdivisions (a) and (b) of Section 4.04.00 [sic] of the Town Zoning Ordinance. The DEIR states that "[t]he project is a synagogue and school in the middle of a residential neighborhood. However, the existing main building has been located on the site since the 1970s, so this non-residential use of the site has a long history.". (DEIR, p. 137.) The DEIR further provides: The project will increase traffic congestion more than would be expected from residential development of the site. The project will increase the number of people and the frequency of parking vehicles on local streets. The project will generate periodic noise not typical of a residential neighborhood. Proj ect improvements are visually different than buildings and improvements typical of a residential neighborhood. Parking lot and other lights could be inconsistent with night lighting in the area. Large nighttime events occurring many weekends as well as less frequently on weekdays would appear to be out of character for a residential neighborhood. The Town staff report prepared for the April 24, 2006 Planning Commission hearing states that: The General Plan policy analysis in the EIR notes that churches and schools are traditionally integrated into residential neighborhoods in Tiburon and all Marin communities. The key to finding that such uses are "harmonious" with the predominant residential use lies in the intensity of the proposed use. The Town has reviewed the CUP for Kol Shofar annually and made adjustments to conditions of approval as necessary over the years, in 1997, 2001 and 2004. The proposed conditions of approval for the new CUP bring forward many of the prior conditions and include several new ones to address the impacts of the proposed expansion. (Staff Report, p. 12.) Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 18 The Planning Commission found the project inconsistent with these provisions based primarily on the frequency and lateness of proposed events (p. 13 of Resolution 2006- 16). . Section 5.08.04 (Parking Requirements) ("Places of Assembly: one for each 4 seats of maximum seating capacity; or one for each 40 square feet of assembly area, whichever is more. ") As described in Impact 3.3-C and Table 5, the'DEIR concludes that the project would not include sufficient parking spaces to meet these criteria. (DEIR, pp. 64-68, 138.) Table 5 and pages 64-68 of the DEIR analyze the consistency of the proposed project, including the new parking lot, and find that it would not meet the requirement of one space for each 4 seats of maximum seating capacity or one space for each 40 square feet of assembly area, whichever is more. 139 total parking spaces are proposed for the proj ect and the existing and proposed uses on the site (sanctuary, chapel, multipurpose room and classrooms) would have a combined total parking requirement of 363 spaces, if each use is considered separately. Section 5.08.10 allows for a reduction in the number of spaces if there are overlapping uses on the property. The Town Staff Report prepared for the April 24, 2006 meeting states that "[w]hile some overlapping parking would result from the Kol Shofar expansion plan, allowing for a reduction in the required number of parking spaces below 363, the DEIR includes Mitigation Measure 3.3-C which proposes a limit of275 attendees (based on 2 persons per car, this yields a parking demand of 139 spaces)." (Staff Report, p. 9.) As stated in Resolution No. 2006-16, "[t]he Planning Commission would have reasonable discretion to reduce the combined parking requirement as described in subsections (a) and (b) [of Section 5.08.10]. However, subsection (a) indicates that the reduction must be based on overlapping uses not having overlapping times." As summarized in the Resolution, for the overlapping uses identified on page 65 of the DEIR, Tiburon Zoning Ordinance requirements range from 161-299 parking spaces where only 139 spaces have been proposed. (Resolution No. 2006-16.) Ultimately, the Planning Commission found this discrepancy too large to approve the CUP application, and suggested that additional on-site parking be created to achieve better conformance with parking standards. . The TNC appeal also cites the following parking provisions in the Town Zoning Code, which the DEIR did not identify or analyze: . Section 5.08.00 (Parking and Loading) ("No structure shall be constructed unless spaces for parking and truck loading and unloading are permanently provided and maintained for the benefit of resident, employees, customers, and visitors, within or outside of buildings or in combination of both. . . ") Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 19 This sentence is the lead-in to the Town's parking regulations and references the specific regulations that follow. In and of itself, it does not establish standards by which the project can be measured, and further discussion is unnecessary . Section 5.08.01 (Applicability) ("A new use, structural addition, or alteration on such parcel shall be allowed only if it does not increase or create a parking deficiency as determined in this section. ") The Planning Commission found that insufficient on-site parking exists that frequently results in overflow onto neighborhood streets. The Planning Commission concluded that "sufficiently increasing the on-site parking capacity would bring the Project into Zoning Ordinance parking regulation compliance and is the most logical mitigation...." . Section 5.08.02 (Location of Required Parking) ("The required parking shall be provided on the parcel or contiguous lot or parcel where the use is located. For non-residential uses, the required parking may be provided on another parcel providing that the parcel is within the Town in a commercial zone and is reasonably convenient to the subject parcel, as approved by the Town. ") As discussed earlier in this Response document, this section does not apply to the project. . Section 5.08.03 (A) (Layout) ("The required parking stalls, loading berths and parking aisles may not be located on any street right-of- way[.] ") The Planning Commission found that the project is consistent with Section 5.08.03(A). None of the proposed parking stalls are located on any street right-of-way; the project is consistent with Section 5.08.03(A). There is no evidence that a potential inconsistency with this ordinance would result in a significant environmental impact. . Section 5.08. 03 (D) (Layout) ("Access driveways shall not be arranged so as to unduly increase hazards to traffir; or pedestrians. '') The Planning Commission found that the project is consistent with Section 5.08.03(D). All access driveways proposed for the project would not unduly increase hazards to traffic or pedestrians, as modified by mitigation measures. There is no evidence to suggest that a potential inconsistency with this ordinance would result in a significant environmental impact. Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 20 . Section 5.08.03 (F) (Layout) ("Large paved areas shall be given visual relief by the interspersion of landscaping within the paved area, as well as around the perimeter. ") The Planning Commission determined that the project is consistent with Section 5.08.03(F). Detailed design of the parking areas will be subject to Site Plan and Architectural Review. There is no evidence that a potential inconsistency with this ordinance would result in a significant environmental impact. . Section 4.04.11 (Off-Street Parking and Loading Requirements) ("The requirements for provision of off-street parking and loading applicable to the particular use shall prevail, unless in the findings and conditions recited in the Resolution, specific additional requirements are made with respect thereto. ") The Planning Commission determined that the project is consistent with Section 4.04.11. There is no evidence that a potential inconsistency with this ordinance would result in a significant environmental impact. Issue B: FEIR inexplicably changes the conclusions of the Draft EIR regarding key inconsistencies with the General Plan and Zoning Code (pp.l0-12) Staff Response: The appellant states that the Draft,EIR included a review of the Project in relationship to the old General Plan and the Final EIR also evaluates General Plan policies of the new 2020 General Plan yet some conclusions have changed from a finding of inconsistency in the Draft EIR to a finding of consistency in the Final EIR and the reasons for this change were not made clear. These items are addressed below: 1) OSC-2 in the old General Plan and LU-5 in the 2020 General Plan. OSC-2 pertains to protection of views, ridgelines, significant vegetation, habitats and environmentally sensitive areas and maintaining harmony with adjacent neighborhoods and open space. The finding that the project would be inconsistent with OSC-2 related to the fact that the project would change views and introduce new non-residential buildings and parking areas that might not be in harmony with surrounding residential areas. The FEIR finding regarding LU-5 is directed at preserving existing neighborhood character and identity. In this finding, the FEIR notes that similar to 8t. Hilary's Church expansion, the CKS facility and proposed expansion could be found to be an extension of the established use of the property which has been for church and school purposes for over 22 years and that this would not change the identify of the surrounding neighborhood. In the case of OSC- 2, the potential environmental impact of the physical change was the focus; while in LU- 5, the finding deals with the consistency of the proposed multipurpose room and classroom expansion with the established church and school use in the neighborhood. Fundamentally, these two policies address different issues and therefore it is not surprising that different conclusions were reached from the Draft EIR to the Final EIR. Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 21 As discussed elsewhere, CEQA does not require that EIRs include an analysis of General Plan policy consistency. In this case, the Town requested that the EIR preparer include a policy consistency discussion. Ultimately, however, the Town decision-makers must balance factual evidence from the entire record before determining whether the project's impacts, both physical and social would be consistent with the Town policy. 2) Goal C-C of the old and new General Plans. This goal is to maintain all existing, as well as to design all future, residential streets with consideration of a combination of residents' safety, cost of maintenance, and protection of residential quality of life. The proposed project was found to be inconsistent with this goal in the Draft EIR and consistent in the Final EIR. The reason for this change has to do with the development of a new mitigation measure in the Final EIR (MM3.3-C.3) that was not. included in the Draft EIR. Mitigation Measure 3.3-C.3 required attendees at new events to park on-site parking or in remote parking lots through a parking permit system that would reduce the traffic safety impact of on-street parking in the neighborhood and related unsafe turnarounds to a less than significant level according to the FEIR. The Planning Commission found this mitigation measure infeasible and the project inconsistent with Goal C-C, and suggested additional on-site parking as a solution. 3) OSC-ll in the old General Plan and OSC-35 in the new General Plan. These policies pertain to minimizing grading and retaining natural landforms. The Draft EIR found that the project would be inconsistent event though grading and tree removal are minimal for ,a site in Tiburon and the site has already been substantially altered by past bench grading done to allow construction of the former school site. The Final EIR concluded that the project would be consistent due to the minimal grading proposed for a site in Tiburon. Despite the difference in the fmding between the Draft and Final EIR, the rationale presented did not change the fact that there is relatively minor grading proposed for the project and there is no difference in the conclusions of the Draft EIR and Final EIR about the environmental impact of proposed grading. This is a minor discrepancy of very little consequence. The Planning Commission found the project consistent with Policy OSC- 35. 4) The Draft EIR reached a different conclusion about consistency with the neighborhood character than the Final EIR. The appellant chooses to compare the Draft EIR (at p. 134) finding with regard to Zoning Section 4.02.07(c) [mislabeled as 4.02.06(d) in the DEIR] that the project's non-residential buildings and parking facilities would be inconsistent with the surrounding residential neighborhood however, they would be consistent with the existing structures on the site, with the Final EIR findings for LU-H and LU-13. The Final EIR concluded that the buildings were consistent with these General Plan policies that discuss neighborhood character in that they are not massive, they are extensions of an existing use that are consistent with the existing buildings at the site, and that ultimately the question of neighborhood compatibility would be resolved through the Site Plan and Architectural Review process. This latter statement is more important than the change in finding of consistency between the Draft and Final EIRs. Again, this is a very minor discrepancy of very little consequence. Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 22 5) Sections 4. 04. 02 (a) and (b) of the Zoning Ordinance. The appellant compares the Draft EIR conclusion (at p. 137) that the project was inconsistent with portions of Section 4.04.02 that deal with whether a project's location is properly related to the development of the neighborhood and the Final EIR conclusion of consistency with General Plan policy LU-I which encourages compatibility of new development with the density, intensity and style of development in the surrounding neighborhood. The conclusions here pertain to slightly different concerns. The Draft EIR finding of inconsistency related to the proposed intensity of new nighttime events and how those would impact the neighborhood; while the Final EIR finding of consistency focused on the existing uses of the property and that the physical expansion would not significantly change the character or identity of the neighborhood. 6) Section 5.08.04 of the Zoning ordinance and General Plan Goal C-I The appellant cites the fmding in the Draft EIR (at p. 138) that the project would be inconsistent with Zoning Section 5.08.04 parking requirements for one parking space per four seats of maximum seating capacity or 40 square feet of assembly area. In the Final EIR, the proj ect was found to be consistent with Goal C- I, to provide adequate parking throughout the Planning Area. In addition to the fact that provisions are not the same, the discussion in the Draft EIR makes clear that the Zoning Code provides the Town decision-makers with flexibility regarding parking requirements (Section 5.08.10). In the Final EIR, the conclusion of consistency with Goal C- I is explained by the fact that mitigation measure 3.3-C.3 was intended to require on-site parking or remote parking lot parking through a parking permit system, thereby significantly reducing on-street parking in the neighborhood and related impacts. Thus, the differences in these findings are clear in the two documents and internally consistent. In conclusion, the appellant's concern that unexplained and unsubstantiated reversals contained in the Final EIR reveal a fundamental lack of analysis in the environmental report is not supported by a careful comparison of the two documents and furthermore, does not have bearing on the fundamental fact that the Town's decision-makers, not the EIR, are the final arbiters of whether the proposed project can be fOlll1;d to be consistent with General Plan policy and Zoning Ordinance standards. Issue C: FEIR does not adequately address the parking requirements in the Zoning Law (pp. 12-14) Staff Response: The TN C appeal provides a detailed critique of the Final EIR mitigation measure 3.3-C.3 that would require a parking receipt program to encourage on-site or remote parking lot parking for newly proposed events and reduce on-street parking impacts in the surrounding neighborhood. Specifically, the appeal raises concerns that the parking receipt program might not be workable. The Planning Commission came to this same conclusion, at the recommendation ,of Town Staff, and found in Resolution 2006-16 that the parking receipt program "is unwieldy, unduly difficult to monitor and enforce, unlikely to be successfully implemented, and therefore infeasible". Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 23 The appellant notes that the FEIR does not provide a parking plan either for on-site valet parking or for locating off-site parking and concludes that parking remains an unresolved, unmitigated significant impact and therefore, the FEIR should not be certified. The FEIR did not need to provide a parking plan because the parking receipt mitigation measure was intended to manage the demand for more parking than was provided on-site for newly proposed events. Valet parking was included as a mitigation option in ~itigation Measure 3.3-C.1, 2 with the other option being to limit the maximum size of newly proposed events to a level (275) where on-site parking would be sufficient. Final EIR Alternative 7 limits maximum attendance at newly proposed events to 250, which would further limit demand for on-site parking. Also, valet parking is included in the existing CUP for management of parking demand during the High Holy Days. Nevertheless, the Planning Commission, in its denial of the CUP, concluded that the project should be revised to include additional parking rather than rely on a parking receipt program. This conclusion is based upon staff s analysis of the project's consistency with the Zoning Ordinance parking standards. There is no need, however, for the Final EIR to be modified or recirculated, because its analysis was adequate and complete within the scope of CEQA. Issue D: Project Description Remains Inadequate (pp. 14-16) Staff Response: This comment includes a number of discrete comments as outlined below: 1. The appellant states that the EIR does not determine the feasibility of the flood detention basin. The TNC previously made this comment on the DEIR. See Response F61 (p. 148 of the FEIR) and Master Response 5 (pp. 22-23 of the FEIR). The appellant has offered no additional information as to why the recommended flood control measures are not feasible. 2. The appellant states no off-site parking lots have been identified. Please refer to the Greenwood Beach HOA appeal discussion below for a detailed response to this item 3. No parking plan has been provided. As stated in Response E21 of the FEIR, a parking plan must be approved by the Town. Such a plan is already part of the existing Conditional Use Permit and would be revised to meet current Town requirements. Please refer to the Greenwood Beach HOA appeal discussion below for a detailed response to this item 4. The appeal asserts that the project has not determined where all parking places would be. As noted on page 41 of the FEIR, the applicant is required to develop 7 additional spaces or to reduce the maximum number of people allowed on site. F or all of these first four comments under heading "D", the appellant chooses to ignore the main thrust of Master Response 5, which states that the EIR identifies specific performance standards that must be met. The details of how those standards will be met are not Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 24 required at this stage as it is not expected that the final design would have additional impacts or increase the significance of any impacts discussed in the EIR. 5. The appellant reiterates the TNC's previous comment about the need for a discussion of the Conditional Use Permit (CUP) in the EIR. This issue was thoroughly discussed in several responses in the FEIR, including Responses F3 (p. 131 of the FEIR), F7 (p. 132), F8 (pp. 132-133), F16 (p. 134), and F59 (p. 147). The appellant goes on to state that all of the terms of the CUP need to be set forth in the EIR. As far as the EIR is concerned, the terms of the CUP would be the project as proposed as modified by the mitigation measures recommended in the EIR. However, as stated in the Final EIR, the actual final terms will be the conditions set forth in the Town's Findings, if it approves a project or project alternative. The appellant states that the EIR does not adequately distinguish between mitigation measures that are part of the project and those recommended elsewhere. The EIR clearly describes the project on pages 5-14 of the DEIR. As described in the analysis of Alternative 7, the changes to the project reduce the number of events, the hours, and the maximum number of participants, and a change in the circulation pattern of the parking lot. The EIR-recommended mitigation measures are listed in the Mitigation Monitoring and Reporting Program at the back of the Final EIR. This table lists the timing of implementation and the responsible parties for implementing the measures and monitoring compli~ce. Town staff determined that this discussion is entirely consistent with the Town's EnVIronmental Review Guidelines. The appellant is incorrect in stating that all mitigation measures must be identified at the outset. Many EIR mitigation measures are developed while assessing a proposed project. The appellant is correct that some mitigation measures have been revised as the proj ect has undergone an extensive public review process. This is one of the chief objectives of the CEQA process - to allow agency and public review of the EIR and to revise it to reflect additional info~ation submitted during the review process. The appellant is incorrect in stating that the EIR does not describe the project. The applicant's proposed CUP is the project description provided in the DEIR, as revised by Alternative 7. The EIR recommends mitigation measures to be added to the final CUP. Issue E: Key impact topics are inadequately evaluated (pp. 16-20) Staff Response: The appellant states that the EIR does not provide rigorous analysis and substantial evidence to justify its conclusions. The appellant is incorrect. Specific comments are responded to below. 1. The EIR does not assess "summer conditions" at the Blackfield Drive/Tiburon Boulevard intersection. This issue was responded to in Response E8 (p. 87 of the FEIR). Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 25 The appellant has not added any new information that would cause the EIR preparers to revise Response E8. 2. The EIR should conduct the analysis to determine whether signal timing at this intersection should be allowed. The EIR does not need to conduct this analysis. The EIR identifies the mitigation measure for this intersection. The FEIR (page 30) states that Caltrans may adjust the signal timing only if it would not adversely affect the level of service at the intersection. The appellant is incorrect in stating that such adjustment would lead to an impact not assessed in the EIR. 3. The appellant asks the basis for determining that 12 people would come in 6 cars. Two people per car is the basis used for all traffic analyses in the EIR and is based on observations of events. The existing upper lot will not be used by the general public and will be restricted to staff and employees. Thus, there will be less use of this existing parking lot than currently occurs. Even though there will be more events, the number of people using the lot will be substantially reduced (as it is now used by parents dropping off and picking up their children). This will reduce an existing traffic safety concern. The project will have less impact at this location than occurs under baseline conditions. 4. The appellant states that the EIR did not address increased use of the Reedland Woods Way exit from people dropping off and picking up children. The change in parking lot circulation was reviewed by the EIR traffic consultants. As reported in the Final EIRfor the Congregation Kol Shofar Conditional Use Permit Application: Alternative 7 Analysis, this change would not result in any new or more severe environmental impacts. The appellant has not provided any data contrary to this conclusion. 5. The appellant states that the EIR does not assess traffic safety of 139 vehicles simultaneously exiting on Reedland Woods Way. TNC previously submitted this same comment, which was responded to in Response F34 (p. 139 of the FEIR). The appellant has provided no information that would require revision of that response. 6. The appellant states that the EIR does not assess the traffic impacts resulting from High Holy Day (HHD) events. TNC submitted the same comment on the DEIR, and it was responded to in Response F40 (p. 142 of the FEIR) and Master Response 4 (pp. 21- 22 of the FEIR). The appellant has' provided no information that would require revision of that response. 7. The appellant states that the EIR does not identify specific mitigations for, HHD events. TNC submitted the same comment on the DEIR, and it was responded to in Response F38 and F39 (pp. 141-142 of the FEIR) and Master Response 4 '(pp. 21-22). The appellant has provided no information that would require revision of those responses. Mitigation Measure 3.3-C.2 applies to HHD events, and this measure requires off-site parking and a parking plan for events with more than 360 people. This is a "specific" Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 26 mitigation as requested by the appellant. Contrary to the claim of the appellant, the EIR identifies specific traffic impacts and identifies mitigation measures for those impacts. 8. Regarding aesthetic impacts, the appellant states that the EIR does not adequately assess visual impacts. The FEIR responded to this criticism in Responses F44 and F46 (pp. 143-144 of the FEIR). The appellant states that Response F44 is "conclusory, and fails to remedy the problem." However, the comment does not provide any specific examples of the conclusory nature of this response. While the appellant again states that TNC would like additional photo simulations and analysis, they do not offer any information that would require revision of Responses F44 and F46. The project improvements would be visible from few public vantage points and homes in the immediate area. The EIR fully assessed the impacts to these public and private viewpoints and to all scenic resources. The appellant has provided no information indicating why the mitigations recommended in the EIR would not successfully reduce potentially significant visual effects to a less than significant level. 9. The appellant reiterates any earlier comment on the use of the Ldn noise metric in assessing noise impacts. The appellant is incorrect. See Response E-l above. 10. The appellant states that the EIR relies on biased noise measurements provided by the applicant to establish baseline conditions. The TNC previously submitted this same comment on the DEIR. See Response F47 (p. 144 of the FEIR). The EIR included noise measurements done by the EIR noise consultants, including additional measurements done as part of the FEIR (see Master Response 7 at pp. 43-46 of the FEIR). The appellant has not provided any information that would require revision of these responses. 11. The appellant states that the FEIR does not adjust measured noise at a nighttime event to reflect a larger peak event. Approximately 250 people attended the measured event. It would not be feasible (i.e., speculative) to project what increase in noise might result from another 25+ people. The difference would not be expected to be substantial. 12. The appellant states that the EIR does not assess noise impacts from the "bowl effect." As discussed in the DEIR on pages 81 and 82 and in Response E33 (p. 92 of the FEIR), there is no "bowl effect" in the sense that noise generated in a valley somehow is magnified in a way that does not occur on flat ground. What happens in a valley is that there are more potential sensitive receptors in direct line of sight (and thus line of noise) to a noise source at or near the bottom of the valley. The EIR assesses noise impacts on the residences closest to the site that might possibly be significantly affected by project noise. The described noise impacts would not be exacerbated by being in a "bowl." 13. The appellant reiterates Comment F48 previously submitted by TNC. As explained in Response F48 (p. 145 of the FEIR), if the noise from existing uses was added, it would result in a "noisier" baseline than was used in the EIR. The impacts could be less if the additive approach suggested by the appellant were used. The EIR Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 27 addressed a worst case scenario that did not include this existing noise. The appellant is correct that the noise would be added, but it would be added to a noisier baseline, and the impacts would not be more, and could be less, than those described in the EIR. The appellant is incorrect that the EIR did not assess all noise impacts, including cumulative impacts. 14. The appellant states that a risk assessment for diesel particulate (DPM) emissions from construction equipment is required. The appellant is incorrect. The standard of significance for DPM exposure is if exposure to project-generated emissions over a 70- year time would increase the number of cancer cases by 10 cases per 1,000,000 people (or a 0.00001 increased chance of cancer for a single individual). The exposure of people living near the site to emissions from grading equipment and other heavy equipment used for proj ect construction for portions of a day for several weeks would not even approach this significance standard. The exposure is the same short-term exposure experienced by people living near any major construction site. The EIR referenced in Response F24 (pp. 135-136 of the FEIR, which responded to the DPM issue) assessed DPM impacts pn people living along State Route 116 in Forestville. The project assessed in that EIR was a quarry that would result in hundreds of new trips per day by heavy trucks hauling aggregate. The EIR assessed the impacts of exposure to this heavy truck traffic over a period of 70 years and found that the number of new cancer cases would be less than the significance criteria. The emissions from equipment constructing the project would be extremely small when compared to the hundreds of truck trips per day over 70 years that would be experienced by people living along the quarry haul route. The risks of ,additional cancer from exposure to project construction-generated emissions are very small. There is no need to conduct a quantitative risk analysis to confirm this conclusion. Issue F: The EIR improperly defers mitigation (pp. 20-21) Staff Response: The appellant states that the EIR improperly defers mitigation for project impacts and that the EIR does not assess the impacts of the final mitigation measures. The EIR preparers disagree with this opinion. The appellant goes on to give an example that the EIR does not assess the impacts of the stormwater detention facility since it is not known whether it would be aboveground or underground, how large it would be, or whether it would cause a reconfiguration of other parts of the project. See Response F61 (p. 148 of the FEIR) regarding the same comment about deferral of mitigation for the detention facility. If an aboveground facility is constructed, it would be located in the location proposed by the applicant (see Figure 13 in the DEIR). It is possible that it may need to be enlarged, depending on the final design calculations; however, the increase would not be substantial and could be accommodated in the undeveloped area east or west of the proposed pond. It would not be expected to extend into the area proposed for parking. Constructing the pond requires excavation and preparing berms. There would not be any new significant impacts associated with making the pond larger or deeper. If the detention facility is placed underground, a hole would be dug, and the tank buried. Other than these excavation-related impacts, there would be no new impacts from constructing an underground detention tank. Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 28 As a second example of the EIR's deferring of mitigation measures, the appellant offers the proposed shuttle service to off-site lots. The appellant does not dispute that the EIR adequately describes the shuttle service itself as mitigation, but complains that the EIR does not show that the service would work or that operating the service in a manner that avoids "undue congestion" would avoid secondary impacts. As a preliminary matter, we not that "undue congestion" is not impermissibly vague as suggested by appellant; it is the type of flexible standard commonly and appropriately used in evaluating CUP performance in the traffic context. Moreover, Alternative 7 will not need the service and off-site lot for proposed new events. Alternative 7 limits the number of attendees to a maximum of275 people, and this number can be handled by on-site parking. The off-site parking under Alternative 7 would be required only for HHD services. The existing CUP contains traffic control measures for HHD services. The project includes a proposal to combine the two split services into a single service on Rosh Hashanah and Yom Kippur. It is expected that there may be more congestion getting in and out of the off-site lots with a combined event, but this impact would be offset by the reduction in congestion generated by people coming and going to two events. If the Town concludes differently, then the Town has the option to not approve the combined events and require the . applicant to maintain the existing split services. Issue G: The EIR does not consider a reasonable range of alternatives (p. 21) Staff Response: The TNC appeal argues that the EIR did not analyze a reasonable range of alternatives, and should have considered off-site locations outside the Town. TNC also claims the EIR should have considered whether CKS' s needs could be met by using another organization's existing facilities or by smaller new construction. At the May 10, 2006 Planning Commission hearing, Ron Brown of CKS explained the efforts made by CKS to find alternative facilities, either permanent or for individual events. Mr. Brown subsequently submitted a letter to the Town describing CKS's efforts. For a number of years, CKS has searched for other locations in Marin to relocate. In addition, CKS has tried to rent other facilities for single, large events such as High Holy Days services. There are no feasible off-site alternatives outside the Town; the EIR was therefore not required to analyze such an alternative. The appeal also suggests that the EIR should analyze smaller new construction as an alternative. The CEQA Guidelines provide that an "EIR shall describe a range of reasonable alternatives to the project, or to the location of the project, which would feasibly attain most of the basic objectives of the project but would avoid or substantially lessen any of the significant effects of the proj ect." The Draft EIR identified two significant and unavoidable impacts - noise and turnarounds. Both of these impacts are related to the arrival of guests and have nothing to do with the size of the facility. The same is true for most of the potentially significant, but mitigable impacts discussed in the EIR. To the extent that certain impacts relate to the facility itself (for example, hydrological and biological impacts), reducing the size of the facility would result in Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 29 minimal reductions in the impacts, if at all. The EIR, therefore, was not required to analyze an alternative with a smaller facility. , Issue H: The FEIR does not evaluate the impacts of 1) increased membership and 2) use of the project at full capacity (pp. 21-25) Staff Response: Staffresponds as follows: 1. The appellant states that the EIR does not address how the proj ect would increase the congregation size and address the impacts of that increased size. The TNC and others made this same comment on the Draft EIR, and this comment was fully responded to in Master Response 3 (pp. 20-21 of the FEIR). As stated in that master response: It would be speculative to project the Congregation's growth based on the proposed project. One might argue that the new buildings would enhance the facility thereby increasing the Congregation's membership, or one could argue that the number of people participating in services and functions is based on the strength of the rabbis, the Congregation's leadership, and/or the Congregation itself. It would be speculative for the EIR preparers to determine to what degree either of these points of view is correct. In addition, the membership has been declining since 1998. Based on the past seven years, one could project a declining Congregation membership. More importantly, the EIR assesses the impacts of the proposed project which is to add new facilities and allow expanded uses of the site in those new facilities. The number of overall Congregation members does not affect the analysis. Rather, it is the number of new events held on the site and how many people attend those events. The number of new events and people accessing the site for such events are what will result in environmental impacts, not the size of the overall Congregation membership. The Conditional Use Permit (CUP), if approved, would establish caps (or limits) on how many events can occur on any given day and how many people can be on the site during these events. These caps are not part of the existing CUP. The appellant has not provided any new or additional information that would require revision of this master response. 2. The appellant notes that the EIR did not adequately address growth-inducing impacts. This is incorrect. As the appellant cites, the DEIR did assess growth-inducing impacts on pages 139-140 of the DEIR. The appellant confuses a discussion of a possible future increase in congregation size with the proposed project. As stated on page 140 of the DEIR, such growth is speculative and would not alter the allowable number of events or maximum attendance at those events. If future growth were to occur and if the applicant sought to amend the CUP, then those additional impacts cited by the appellant would need to be addressed in the CEQA review of that application. Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 30 3. The appellant states that the EIR assumes the Town can regulate the growth of the Kol Shofar membership, and that the Town is unlikely to effectively regulate future use of the facility. The appellant is incorrect. The EIR makes no assumption that the Town has the ability to regulate the membership of a religious organization. In fact, the Town does not have this legal ability. The appellant is equally incorrect in stating that the Town does not have the ability to regulate uses of the facility. This is the entire point of the proposed CUP, complete with EIR-recommended mitigations: to set limits on the numbers of events, the hours of those events, and the maximum number of attendees attending those events. This is, in fact, the very regulation the appellant states is unlikely. Any future proposal to revise the CUP conditions would need to undergo additional CEQA and public review. Given the review process for the proposed project, it is expected that any request to revise the conditions would be thoroughly assessed and discussed prior to any action on the proposed revision. 4. The appellant states that the EIR preparers ignored requests for information on the growth of the congregation membership. This is incorrect. Information available to the EIR preparers was presented on pages 126-127 of the DEIR and in Master Response 3 (pp. 20-21 of the FEIR). The EIR preparersrequested any additional information the applicants might have about the years 1986-1995. The applicants responded that they did not have that information. 5. The appellant states that the EIR is argumentative in noting that the congregation size has declined over the past seven years while ignoring its increase over the previous . 13 years. However, the EIR does not dispute the historic growth in Congregation membership; noting the decline in more recent years is not argumentative where required to present an accurate project background. The EIR preparers do not understand why presenting this fact is argumentative. The appellant requests that the EIR project some unknown increase in congregation size based on growth that occurred between 1985 and 1998 and ignore a stable (even slightly declining) congregation size over the past 8 years. Typically, population projections rely more heavily on more recent trends as opposed to historic trends. As was stated in Master Response 3, there is no basis for projecting additional congregation growth, and to do so would be speculative. More important is the fact, as stated in Master Response 3 and several other responses in the FEIR, that the size of the congregation is not the issue, rather it is the amount of use allowed at the existing and proposed facilities. This use would not change whether the congregation grows or shrinks, unless the applicant sought a further revision of the CUP. As explained above, this would require additional CEQA review and public discussion. 6. The appellant states that approval of the project makes it extremely likely that the congregation will grow. This opinion is noted for the record, but the appellant provides no evidence to support this opinion. Again, it ignores the fact that the size of the congregation is not the issue at hand. 7. The appellant cites CEQA regarding the requirements for not assessing speculative impacts. Contrary to what the appellant states, this EIR contains numerous Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 31 discussions about the issue of congregation growth. See pages 16 and 139-140 in the DEIR, Master Response 3 and Responses E7 (p. 86 of the FEIR), F19-F20 (p. 134 of the FEIR), and WI (p. 300 of the FEIR), in addition to responses above. The EIR preparers continue to believe that it would be speculative and unsupported to state that the congregation would grow by some unknown percentage (the appellant has not provided an estimate of what he believes the growth rate should be). Finally, once again, it would not matter if a population increase was projected. Given the caps assessed in the EIR, an increased population would not add new people to events, it would not cause increased traffic to events, it would not cause additional noise, and it would not cause any new or more significant impacts than assessed in'the EIR. 8. The TNe appeal assumes growth in the congregation membership and that this growth would then result in pressure to increase usage of the facilities, and that CEQA requires analysis of foreseeable growth in usage. As stated above, there are no grounds for assuming a growth in congregation size and, thus, it is equally speculative whether such growth would result in a future request to revise the CUP. The EIR does address these speculative impacts on page 140 of the DEIR. Further analysis would not be possible without some idea of what form this increased usage would take, and it is currently speculative if there would be a request to revise the CUP, and if there were, what that request would be (e.g., more events, longer hours, more people allowed to attend, etc.). The appellant goes on to discuss the ramifications of what he defines as foreseeable growth. The EIR preparers disagree that this growth is foreseeable as that word is defmed by CEQA. 9. The appellant notes that the limits on event attendance do not apply to existing Saturday and Sunday morning services. This is correct because these are existing services and not new services proposed by the applicant. Currently, the CUP does not place any restrictions on how many people can attend these services. The proposed project does establish caps of 400 attendees at these services, which is the current maximum attendance. This would remain the maximum attendance at these services even if the congregation were to increase. If the project is not approved, then there would be no cap on the services under the existing CUP. 10. The appellant reiterates the need to discuss the impacts of a future expanded congregation and not "hide" the analysis under the reliance on attendance caps. First, this use of proposed restrictions (or "caps") as the project description was the direction provided to the EIR prepares by the Town upon initiation of the EIR process. Second, it is not clear why assessing impacts based on the proposed caps hides the impacts. The impacts are clearly described and would not change if the congregation population increased. The impacts would only change if the caps were changed, and, as noted several times previously, it is currently speculative that such a revision would be requested and what that revision would be. If and when such a revision is proposed, then a CEQA analysis of that exact revision could be performed. Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 32 11. The appellant concludes that the EIR does not provide information about the ultimate project impacts. The EIR preparers disagree with the appellant as described in the previous responses. Issue I: The FEIR Responses to Comments are inadequate (pp. 25-26) Staff Response: The appellant states that the EIR lacks accountability, and gives one example to corroborate this claim. The example is that in Response F3 (p. 131 of the FEIR) that the EIR preparers do not provide the final conditions that would be included in the CUP that the Town would approve if it approved the project. This issue has already been responded to above. The CUP would include the project as proposed (Alternative 7) complete with the EIR-recommended mitigations. The Town may substitute mitigation measures or delete measures it feels are not needed or not feasible. That is why it was stated that the EIR preparers are unable to specify what the final conditions the Town will approve are. The EIR clearly identifies a proposed project and assesses the impacts of that project. The mitigations required to mitigate impacts would become conditions of approval, except as modified by the Town as described above. Contrary to the appellant's opinion, the EIR fully meets CEQA requirements regarding responses to comments. Issue J: Additional information submitted after the release of the DEIR requires that the EIR be recirculated (pp. 26-33) Staff Response: The TNC argues in its appeal that the additional information added to the Final EIR - the Appendix discussing Alternative 7 - requires recirculation. Only if a lead agency adds "significant new information" to an EIR subsequent to the commencement of public review and interagency consultation but prior to final EIR certification, must the agency "recirculate" a revised EIR, or portions thereof, for additional commentary and consultation. New information added to an 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 proj ect alternative) that the project's proponents have declined to implement The courts have clarified the "significant new information" standard, holding that recirculation is only required when new information was added to an EIR that changed it in such way that the public was deprived of meaningful comment on a new adverse environmental effect of the project or a feasible way to mitigate or avoid such an effect (including a feasible project alternative) that project proponents have declined to implement. The court reasoned that by codifying the "significant new information" language, the Legislature did not intend to promote endless rounds of revision and recirculation of EIRs. Instead, recirculation was intended to be an exception, rather than the general rule. Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 33 CEQA Guidelines section 15088.5 governs the practical application of the recirculation standard. For example, recirculation is required when "a new significant environmental impact would result from the project.'~ (CEQA Guidelines~ S 15088.5~ subd. (a)(l).) This section is particularly relevant here~ because Alternative 7 is a new alternative that proposes to reduce the potential impacts associated with the proj ect as compared to the project initially proposed. Specifically, Alternative 7 is the same as the proposed Project but with limits on the number of new events and a revised circulation plan. (FEIR, p. 3.) Proposed changes to the project are not a basis for recirculating an EIR if they will only reduce impacts, (See Remy et. al., Guide to the California Environmental Quality Act (lOth ed. 1999) pp. 304-305.) In other words, where a new alternative is similar to one already outlined in an EIR, the time and expense associated with recirculation would not be justified. Here, Alternative 7 is not a significant change to the Project. Indeed, Alternative 7 is the same as the proposed Project with two simple modifications: (1) the number of Saturday and Sunday evening events is substantially reduced from what was originally proposed~ and attendance at those events would be limited; and (2) the circulation plan is revised to more closely reflect the existing circulation pattern. Furthermore, the public has had ample time to review Alternative 7 and provide comments. In fact, an entire Planning Commission hearing (May 10, 2006) was devoted specifically to comments on Alternative 7. CEQA is clear that an EIR should be recirculated only when substantial changes in a project would result in a new significant adverse impact or a substantial increase in the severity of a previously identified significant impact. (Pub. Resources Code,' S 21092.1; CEQA Guidelines, S 15088.5.) The CEQA process is meant to prompt project changes that benefit the environment. APPEAL #3: Greenwood Beach Homeowners Association (1 page) Issue #1: the CUP The EIR does not analyze how a parking de~cit is to be managed in Staff Response: The Greenwood Beach Home Owners Association appeal asserts that although the EIR acknowledged a parking deficit would be created by CKS upon implementation of the Conditional Use Permit (CUP) amended to allow construction of the Multi-purpose room four new classrooms and facility remodel, the EIR was silent on how the parking deficit will be discharged except for casual reference to use of off site parking. Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 34 The H 0 A also asserts that the EIR fails to define where or what duration such deficit parking is to be provided, and the Tiburon Code outlines specific, deliberate requirements on how a deficit parking is to be provided. Accordingly, the HOA asserts that "The failure to comply with these requirements renders the EIR incomplete and defective, and consequently, the application ofCKS for a Conditional Use Permit is unsupported by the required documentary foundation, and is itself incomplete and defective." First, the need for off-site parking is an existing condition, occurring mostly as worshippers attend services on the High Holy Days. Construction of the Multi-purpose room will not increase the need for off-site parking. In fact, proposed mitigation measures and conditions for the CUP amendment would limit attendance at new events to a degree that all parking could be accommodated on site. The Kol Shofar application seeks amendment of the existing CUP to allow new classrooms and a Multi-purpose room addition to house activities with populations that already occur on the property. The existing use permit, starting with the Town CUP approval in 1997 and contained in Appendix F of the DEIR, disclose that on-site parking deficits exist for the existing activities at Kol Shofar. Condition 9 of Resolution 97-17 requires that a shuttle program be in place and implemented for the High Holy Days. The CUP as amended would not change this requirement. The Westminster Presbyterian Church parking lot at the corner of Tiburon Boulevard and Blackfield Drive has been a designated off site parking location known to the Town and used by Kol Shofar for many years. Condition 12 of Resolution 97-17 requires Kol Shofar to coordinate with Town Police when an event results in "heavy use" of the property and on-street parking results. It is specifically noted on-street parking on Via Los Altos and Vista Tiburon Drive is expected and accepted as meeting overflow parking needs on occasion. Additionally, in 2004 the Town Planning Commission amended the CUP conditions (See DEIR Appendix F - Resolution 2004-10 - Condition #24) requiring that "major event" (defmed as non-high holy day events exceeding 400 persons and including barlbat mitzvahs and Sabbath services) traffic control include regulation of parking on Reedland Woods Way. Clearly the DEIR provides, by inclusion of existing CUP's, deliberate disclosure of previous and current requirements for Kol Shofar to meet sporadic event deficit parking. Secondly, on pages 64-68, the DEIR discloses that a parking deficit would continue to result upon implementation of the CUP as amended. On page 65 and in Table 5, the DEIR very clearly defines what duration such deficit parking would occur and where deficit off site parking will occur. DEIR page 67, second paragraph states "For events where there is inadequate on-site parking or where on-site parking appears full, people accessing the site will park on adjacent public streets." Then the DEIR goes on to name the public streets, Via Los Altos and Blackfield Drive. Thirdly, the DEIR outlines very specifically on page 67 "Mitigation Measures" to ensure that people attending project events can park on-site and avoid deficit parking. Mitigation measure one states the following: Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 35 1. Do not allow more than 275 people on the site for any function or combination of functions. OR 2. Require valet parking for all times when there are more than 275 people on the site up to a maximum of360 people. Events more than 360 people would require a shuttle service to and from Town -approved remote lots. The DEIR further notes (See page 68), very specifically where on-street parking could be used to accommodate deficit parking. Accordingly, the DEIR did not fail to comply with the CEQA requirements to disclose that deficit parking may be a result of the project approval. Additionally, the EIR makes very clear, when and where and how much additional off-site parking would be needed. Finally, the EIR offers very specific mitigations for how to manage deficit parking and what specific public streets, immediately adjacent to the project site, could provide deficit parking and how much parking exists. Finally, although the EIR does not specifically identify remote parking lots that could be used in conjunction with a shuttle program, it does note that Town- approved remote lots could meet Kol Shofar deficit parking demand. One clear alternative remote lot, Westminster Presbyterian Church, is currently used by Kol Shofar and this practice is known to the Town. The EIR does not leave to speculation the identification of where deficit parking will be located. The EIR identifies use of valet parking on-site (using the proposed on-site parking lots more intensively than strictly specified in Town code). The EIR notes that surrounding public streets in the immediate neighborhood can accommodate occasional deficit parking. Finally, the EIR makes it clear that a shuttle service can be used in conjunction with remote parking lot use when large events are planned. Kol Shofar currently makes use of the Westminster Presbyterian Church site for an off-site parking/shuttle. Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 36