To:   HONORABLE MAYOR AND                 From:   Stephen M. Haase

                        CITY COUNCIL

 

   Subject:   SEE BELOW                                               Date:   November 25, 2003

 

COUNCIL DISTRICT: 2

SNI AREA:  None

 

SUBJECT:  PDC02-086.  PUBLIC HEARING ON APPEAL OF THE PLANNING COMMISSION’S CERTIFICATION OF A FINAL ENVIRONMENTAL IMPACT REPORT FOR THE LOWE'S HOME IMPROVEMENT WAREHOUSE PLANNED DEVELOPMENT REZONING FROM IP INDUSTRIAL PARK ZONING DISTRICT TO IP(PD) PLANNED DEVELOPMENT ZONING DISTRICT TO ALLOW DEVELOPMENT OF UP TO 222,673 SQUARE FEET OF COMMERCIAL USES ON AN 18.75-ACRE SITE LOCATED ON THE SOUTHEAST CORNER OF BLOSSOM HILL AND COTTLE ROADS.

 

RECOMMENDATION

 

The Director of Planning, Building and Code Enforcement recommends the City Council adopt a resolution to certify:

 

1.      The City Council has read and considered the Final EIR;

2.      The Final EIR has been completed in compliance with the California Environmental Quality Act (CEQA); and

3.   The Final EIR reflects the independent judgement and analysis of the City of San Jose.

 

BACKGROUND

 

On November 19, 2003, the Planning Commission held a public hearing on certification of the Lowe's Home Improvement Warehouse Final Environmental Impact Report (EIR).  After public testimony and discussion, the Planning Commission voted 6-0-1, Commissioner James abstaining, to certify the Final EIR as recommended by the Director of Planning, Building and Code Enforcement.  On November 24, 2003, the Department of Planning, Building and Code Enforcement received a written appeal of the Commission’s certification from the Preservation Action Council of San Jose.

 

San Jose Municipal Code (SJMC) Chapter 21.07 requires the Director of Planning, Building and Code Enforcement to schedule a noticed public hearing on a timely appeal of the Commission’s certification of the Final EIR before the City Council.  The certification appeal hearing of the City Council must be de novo.  The City Council may hear the appeal of the certification concurrently with the project.  Council is scheduled to consider the project at its December 2, 2003 meeting.  Upon conclusion of the certification appeal hearing, the City Council may find that the Final EIR has been completed in compliance with the requirements of CEQA.  If the City Council makes such finding, it shall uphold the Commission’s certification of the Final EIR and it may then immediately act on the project associated with the Final EIR.  If the City Council finds that the Final EIR has not completed in compliance with CEQA, the Council must require the Final EIR to be revised and it may not take any action on the project.  The City Council also has the ability to approve one of the project alternatives after certifying the Final EIR.  All decisions of the City Council are final.

 

ANALYSIS

 

The attached letter dated November 24, 2003 from Alex Marthews, Executive Director, Preservation Action Council of San Jose, constitutes a formal appeal of the Planning Commission’s certification on November 19, 2003 of the Lowe's Home Improvement Warehouse Final EIR.  The primary ground for the appeal is that the Final EIR failed to adequately analyze project alternatives where a Lowe's of the same size and shape as is currently proposed could be built on portions of the site that do not result in the demolition of any part of IBM Building 25.  The appellant requests the City Council overturn the decision of the Planning Commission to certify the Final EIR and direct that the EIR be revised before action is taken on the project.  The City of San Jose’s responses are discussed below under subheadings that correspond to the grounds for the appeal.

 

I.          The Final EIR Failed to Adequately Analyze Potential Project Alternatives

 

The appellant states that the assessment by the historic sub-consultants, Thomas Rex Hardy and Bruce Anderson, indicated the construction of a Lowe's in close proximity would render IBM Building 25 no longer eligible for the National or California Registers.  The appellant believes that as a result of the assessment by the historic sub-consultants, Thomas Rex Hardy and Bruce Anderson, that a crucial project alternative was overlooked that would preserve IBM Building 25 while allowing for the proposed Lowe's, an alternative that would allow construction of a Lowe's home improvement store of the same size as proposed by Lowe's, but on a part of the site that does not overlap at all with the footprint of IBM Building 25. 

 

To the contrary, City staff, the Historic Landmarks Commission, and Urban Programmers (the historic consultant who originally identified IBM Building 25 as a significant historic resource), disagreed with this assessment, and were in agreement with the appellant’s argument that the elimination of landscaping would not threaten IBM Building 25's eligibility status.  Therefore, the project alternatives selected by the City for analysis in the EIR were independently selected and were not based on the Hardy/Anderson assessment, and the City did not, as the appellant contends, miss a crucial project alternative.

 

The appellant previously raised issues on the adequacy of the project alternatives analysis in comments on the Draft EIR, and responses to these comments were included in the First Amendment to the Draft EIR (see pages 19-24 of the First Amendment for staff's response to comments raised by PAC SJ.  The First Amendment was distributed to the City Council on October 10, 2003).

 

The appellant contends the Final EIR is inadequate with regard to potential project alternatives because they believe it did not consider alternatives that allowed

 

1)      the same size Lowe's with the garden center relocated into part of IBM Building 25, 

2)      the same size Lowe's with broadly the same shape, with its own garden center and IBM Building 25 devoted to retail, and

3)      the same size Lowe's, shifted a few feet to allow preservation of IBM Building 25 for retail use. 

 

These three alternatives suggested by the appellant are not substantially different from the alternatives analyzed in the Final EIR, which would mitigate the environmental impact from the loss of the historic resource.  The appellant’s three proposed alternatives would not result in substantially different impacts than those identified in the Final EIR.

 

A.        Requirements for Alternatives Analysis

 

The project alternatives evaluation in the Draft EIR was prepared in accordance with Section 15126.6 of the CEQA Guidelines, which describes the requirements for consideration and discussion of alternatives in an EIR.  This section of the CEQA Guidelines states 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 project, and evaluate the comparative merits of the alternatives.  An EIR need not consider every conceivable alternative to a project.(emphasis added)  Rather it must consider a reasonable range of potentially feasible alternatives that will foster informed decisionmaking and public participation.  An EIR is not required to consider alternatives which are infeasible.”

 

Section 15126.6(f) of the CEQA Guidelines specifies that “the range of alternatives required in an EIR is governed by a ‘rule of reason’ that requires the EIR to set forth only those alternatives necessary to permit a reasoned choice.”  The alternatives must be limited to ones that would avoid or substantially lessen any of the significant effects of the project.  Of those alternatives, the EIR need examine in detail only the ones that the City determines could feasibly attain most of the basic project objectives. 

 

At the Planning Commission hearing, staff described in opening remarks the CEQA requirements for an EIR alternatives evaluation.  Staff stated the Final EIR analyzed seven project alternatives, including a No-Project Alternative, several alternatives that would preserve historic IBM Building 25, an alternative that would preserve more ordinance-sized trees and eliminate visual impacts, and an alternative project location, in accordance with CEQA requirements.  The Lowe's Final EIR evaluated project alternatives in conformance with CEQA Guidelines 15126.

 

B.        Appellant's Proposed Alternative Evaluation

 

In the written comments received on the Draft EIR, the appellant asserted that the Draft EIR did not adequately develop mitigation plans that incorporated IBM Building 25 into Lowe's development plan.  The appellant suggested using IBM Building 25 for the Phase II retail/restaurant uses or for the Lowe's garden center.  However, as described on page 21 of the First Amendment in response to Preservation Action Council’s comment # I-5, locating the Lowe's garden center in IBM Building 25 was not considered because a garden center requires an open, flat outdoor area to store, display and water large amount of potted plants and store gardening supplies, which could damage the building.  Lowe's garden centers are typically at least 25,000 square feet in size.  Therefore, IBM Building 25 could not accommodate Lowe's garden center program with its floor plan configuration of "spine and wings" and smaller individual courtyards.  This project alternative is not substantially different than the project alternatives already analyzed in the EIR (see alternative on page 150 of Draft EIR), and would not require recirculation of the EIR.

 

One of the project alternatives evaluated in the Final EIR was the "Alternative Uses For Building 025" found on page 150 of the Draft EIR.  The feasibility of using the building for some land use other than the Lowe’s center was evaluated, irrespective of whether the alternative land use could meet the applicant’s project objectives.  The land uses considered in the analysis were confined to those that are allowed under the current General Plan designation, and included light industrial, research and development, as well as public or quasi-public uses such as schools and community centers.  Retail uses consistent with the General Plan designation of Industrial Park with Mixed Industrial Overlay would also be appropriate.  Such retail uses are already envisioned in Phase II of the project, which proposes to develop up to 60,000 square feet of retail on 6.75 acres, including up to 7,000 square feet of restaurant use, consistent with the General Plan designation of Industrial Park with Mixed Industrial Overlay.  While the specific retail uses for Phase II have not been identified, the types of retail uses envisioned include sales and service, including financial services, and restaurant use, which are allowed as support commercial within the Industrial Park zoning and land use designations.  This project alternative is not substantially different than the project alternatives already analyzed in the EIR (see alternative on page 150 of Draft EIR), and would not require recirculation of the EIR.

 

The information in the appellant’s letter reiterates previous public comments that the City has either already responded to or were already addressed in the Final EIR.  The Final EIR adequately addresses project alternatives in accordance with CEQA Guidelines 15126.   After certifying the Final EIR, the City Council has the option to approve one of the project alternatives as recommended by the appellant without need to re-circulate the EIR.

 

II.        Recirculation of EIR

 

As a general rule, EIRs are circulated once for public review and comment.  If “significant new information” is added to the EIR after the close of the public review period on the Draft EIR but before certification of the Final EIR, the Lead Agency must provide a second public review period and recirculate the Draft EIR for comments.  Under CEQA Guidelines 15088(b), recirculation is required when new significant information identifies:

 

(1)        a new significant environmental impact would result from the project or from a new mitigation measure proposed to be implemented;

(2)        a substantial increase in the severity of an environmental impact would result unless mitigation measures are adopted that reduce the impact to a level of insignificance;

(3)        a feasible project alternative or mitigation measure considerably different from others previously analyzed would clearly lessen the environmental impacts of the project, but the project’s proponents decline to adopt it; or

(4)               the Draft EIR was so fundamentally inadequate and conclusory in nature that meaningful public review and comment were precluded.

 

Recirculation of a Draft EIR is not required where the new information merely clarifies, amplifies, or makes minor modification to an adequate Draft EIR.  The written appeal of the Planning Commission’s certification of the Final EIR does not require recirculation based on the above criteria.  All information in the appellant’s letter, which has been added to the Final EIR, merely reiterates previous public comments that the City responded to in the Final EIR.  The appellant’s comments do not raise any “significant new information” which was not addressed in the discussion and analysis in the Final EIR, nor are the appellant’s three proposed alternatives considerably different from those analyzed in the EIR.  Therefore, the City Council may uphold the Planning Commission's certification of the Final EIR and take action on the project.

 

Summary

 

The appellant has appealed certification of the Lowe’s EIR on the basis of the alternatives analysis.  The alternatives were developed and analyzed by City staff in accordance with the requirements of CEQA.  The appellant’s three proposed alternatives are not considerably different from those analyzed in the EIR, and therefore recirculation of the EIR is unwarranted.  If the City Council certifies the EIR, it may then consider the appellant’s proposed alternatives as it considers the project.

 

 

PUBLIC OUTREACH

 

Public outreach was conducted for the Final EIR in accordance with the City's Public Outreach Policy.

 

COORDINATION

 

Preparation of this memo was coordinated with the City Attorney’s office.

 

CEQA

 

Resolution to be adopted.

 

 

Stephen M. Haase AICP, Director

Planning, Building and Code Enforcement

 

 

SMH:JH:jam

 

Attachments

 

C:         Alex Marthews

            Preservation Action Council of San Jose

            P.O. Box 2287

            San Jose, CA 95109-2287