Mayor Phillips & Members of the City Council

San Rafael City Council

1400 Fifth Avenue

P.O. Box 151560

San Rafael, CA 94915-1560

 

Re:       San Rafael Airport Recreational Facility

 

Dear Mayor Phillips and Members of the City Council:

 

This firm represents the Marin Audubon Society, the Marin Conservation League, and the Gallinas Creek Defense Council on matters relating to the San Rafael Airport Recreational Facility ("Project").   Marin Audubon and Marin Conservation League have a long history of protecting the natural resources of Marin County, and are particularly concerned about the Project's  impacts on wetlands, endangered species, and Gallinas Creek.  The Gallinas Creek Defense Council is a coalition of citizens and organizations concerned with the well being of the Gallinas Creek watershed.

 

The Project represents a substantial intensification of use of the Airport site to the detriment of the sensitive biological resources on the project site, in Gallinas Creek, and to the ultimate users of the facility.  The Project will attract, at a minimum, hundreds of people and vehicles to this site every day even though it is located in a wetland overlay zone, is diked baylands, and is adjacent to an operational airport.  Both the San Rafael General Plan and state guidelines for airports set forth a number of policies designed to protect this site from the type of development proposed here.  As detailed in this letter and the numerous previous comments by Marin Audubon, Marin Conservation League, and the Gallinas Creek Defense Council, the Project is not consistent with the City's General Plan or Zoning Ordinance and it is flatly inconsistent with state policies designed to prevent the location of group recreational facilities in close vicinity to airports.  The City's review so far, however, has focused on explaining away the inconsistencies rather than modifying the Project to address them.

 

Moreover, the City has failed to adequately evaluate the environmental impacts associated with the Project as required by the California Environmental Quality Act. Among other deficiencies in the environmental review, the environmental impact report ("EIR") fails to seriously address the Project's impact on endangered species, particularly, the California Clapper Rail, it does not analyze the full range of noise impacts associated with the Project, it continues to downplay safety impacts, and it minimizes impacts associated with the emission of greenhouse gases.

 

In view of the Project's clear inconsistencies with City policies and the failure to adequately evaluate its significant impacts, the City cannot approve the Project. Rather, the Project must be revised to comply with the clear limits of the City's general plan and zoning. Even without such modifications of the Project, the City must prepare and recirculate a new EIR that fully discloses, analyzes, and mitigates the Project's significant impacts as required by CEQA.

 

I.          The Project  is Inconsistent with Land Use Policies Designed to Protect Public Safety and the Environment.

 

A.         The Project is Not Consistent  With the California  Airport Land Use Planning Handbook.

 

Among its most significant flaws, the Project presents serious safety hazards that have not been adequately addressed either in the environmental review for the Project or the Project design.  In particular, the location of this project in safety zones adjacent to the runway at the San Rafael airport is inconsistent with the provisions of the 2011 California Airport Land Use Planning Handbook which specifically provides that group recreational facilities in such zones should be prohibited. In its May 16, 2012 letter to the City, Mead & Hunt concede the project is "fundamentally considered a group recreational use." (May 16, 2012 Letter. from Maranda Thompson to Kraig Tamborini, at p. 5.) Although the letter goes to great lengths to explain why the facility should nonetheless be excused from the safety provisions of the Handbook, it cannot explain away this fundamental inconsistency.  That the San Rafael Airport is a private facility does not decrease the safety issues involved here. Indeed, the EIR itself indicates that because it is impossible to predict accidents, "the accepted practice of measuring airport land use risks is to use the basic safety zones" provided in the Handbook.  EIR at p. lO­ ll. Moreover, the City's general plan also requires the City to ensure the safety of the Project. General Plan Goal28; Policy S-1 and S-la.

 

Moreover, from a CEQA perspective, the inconsistency with an express safety standard in the Airport Land Use Handbook is a significant environmental impact that must be disclosed and mitigated. That the Handbook does not apply as a regulatory tool to private airports is not relevant from a legal perspective under CEQA. Protect The Historic Amador Waterways v. Amador Water Agency (2004) 116 Cal.App.4th 1099, 1107. The argument that a project's impact will not be significant solely because the project would not violate any applicable standards has been soundly rejected by the courts. See, e.g., Communities  for a Better Env't   v. California Res. Agency (2002) 103 Cal.App.4th 98, 111-12 (invalidating a CEQA guideline that presumed projects did not have significant effects if they complied with local standards.) Here, even though the Project is not subject to the Airport Handbook as a regulatory matter, it still violates the Handbook's safety standards.

 

The various measures suggested by Mead & Hunt to address the Project's inconsistency with the safety provisions of the Handbook do not reduce the risk of an accident that could cause injury or death to many people.  These measures also fail to demonstrate how they would even reduce or eliminate the damage that such an accident would cause. For example, measures designed to limit capacity at events are completely unenforceable. Similarly, the Mead  Hunt letter recommends limiting windows in the building design, yet the Project itself includes a viewing area so spectators can watch outdoor sports through windows from inside the second floor of the building. Even if the measures were enforceable or internally consistent, measures such as limiting the number of people at events, reducing windows, increasing the use of exit signs, or prohibiting fixed seating does nothing to eliminate the risk of an accident. Given that the risk of accident has not been reduced, it is unclear how the City can conclude that there are no significant safety risks simply because it may impose some measures that might theoretically reduce the number of people injured or killed in the case of an accident.

 

B.         The Project is an Obstruction to Aviation under Federal Aviation Administration Regulations.

 

In addition to its inconsistency with the airport safety zones, the Project will also penetrate the airspace around the Airport. The EIR acknowledges that this obstruction would be a significant safety impact. However, the EIR ignores mobile obstructions resulting from the Project, including vehicle obstructions and soccer balls. For example, the EIR assumes that vehicles accessing the facility will be passenger vehicles that do not exceed 10 feet and the only intrusions are associated with the first row of parking for the Project.  However, as pointed out in the March 9 Department of Transportation letter, a mobile object is, and a future object would be an obstruction to air navigation if it is of greater height than any of the FAR Part 77.17 surfaces. Exhibits A to this letter shows how mobile objects such as soccer balls, school buses and service vehicles will intrude into the air space around the airport. Therefore, the Planning Commission's recommendation to simply move the first row of parking will not address these significant impacts.  Similarly, reducing the height of the building will not eliminate these mobile obstructions.  Finally, the applicant's claim that airspace obstructions will be eliminated by grading and site design are not supported by the current site plans.

 

II.         The Project is not Consistent With  the City General Plan  and Land  Use Regulations.

 

A.         The Project Is Not Consistent with  the Wetland Overlay Zone or the

Declaration of Restrictions on Development of the Airport Property.

 

The Project is not only inconsistent with the Airport Land Use Handbook, it also conflicts with a number of City land use policies and regulations.  Most significant, the Project is not consistent with the Wetland Overlay zone that applies to the Airport property or General Plan policies designed to protect wetlands.  The Wetland Overlay zone includes specific limits on the types of uses that are permitted "in or near" wetlands. With respect to recreational activities, the City Code provides "Recreation/scientific activities in or near wetlands should be low intensity uses, such as bird watching, fishing, nature photography and study, wildlife observation and scientific research and education." San Rafael Zoning Ordinance §14.13.030.  Given its location in a wetland overlay zone, there can be no doubt that the Project is located near a wetland. And, in fact, the uses and facilities authorized by the Project can come as close as 50 feet to a wetland that is habitat for endangered species. The sports facility here is not a low intensity use under any reasonable definition of the word.  Therefore, it cannot be located in a wetland overlay zone.

 

City staff attempts to avoid this clear inconsistency with the restrictions of the wetland overlay zone by claiming that recreational uses can include structures and facilities. March 27, 2012 Planning StaffReport, p. 14.  This argument, however, ignores the fact that the wetland overlay zone itself adds an additional limit to the type of recreational facilities permitted near wetlands- a restriction that limits these uses to low intensity ones.

 

For similar reasons, the Project is not consistent with the limits set forth in the declaration of restrictions recorded on the property. The fact that the County has indicated it will not challenge the Project does not mean that it is consistent with these restrictions. There are many reasons why a public agency might not challenge another public agency's review of a project, including use of public resources, reluctance to sue a fellow public agency, or concern over setting a precedent. Nothing in the County's letter regarding the Project indicates a belief that the Project is actually consistent with the declaration of restrictions.

 

Finally, the Project is also inconsistent with a number of policies in the San Rafael General Plan designed ·to protect diked baylands and sensitive species.  For example, the property is identified as "diked marshland" in the City General Plan and "diked wetlands" in maps prepared by the San Francisco Estuary Institute which identify the status of various baylands in the San Francisco Bay Area.  See Exhibit B to this letter. The responses to comments also provide further evidence that the site is diked baylands. Specifically Master response 12 (at C&R 27) reads in part:

 

The levee system surrounding the property crosses between private (airport) and public (state lands/county) ownership and responsibility. The

12,000-linear-foot  perimeter levee system that surrounds the Project site, bordering the North and South Forks of Gallinas Creek, were constructed by previous land owners by placing fill on the flat marshy areas of the property in the 1940's to reclaim lands for agricultural purposes.

 

The City, however, has failed to comply with Policy CON-5, which requires the protection of "seasonal wetlands and associated upland habitat contained within undeveloped diked baylands."

 

B.         The Project Contradicts A Number of General Plan Policies Designed to Protect Biological Resources and Endangered  Species.

 

The Project will also adversely impact the California Clapper Rail in violation of general plan policies CON-14 and Conservation Element Goal 1 and must be consistent with the Endangered  Species Act.  Among its other deficiencies, the Project will substantially increase noise and light in habitat for these endangered species, it will substantially increase human use of the site, and will increase litter in and around Gallinas Creek.  Yet, the Project does not include adequate measures, such as limits on construction and setbacks, to protect these endangered species. Contrary to the representations in the responses to comments, there is no evidence to support the conclusion that the California Clapper Rail has become habituated to human presence. See July 22, 2012 memorandum from Jules Evens, Exhibit C to this letter.  And, in fact, given the size of the Project site, the City should comply with General Plan policy CON-4, which allows for greater than a 50 foot setback from wetlands where the property is greater than 2 acres.  Given the Project's location immediately adjacent to the Clapper Rail's tidal marsh habitat and the fact that this upland habitat can provide high tide refuge for the Clapper Rail as well as cover from avian predators, it is critical to increase the buffers here.

 

Moreover, even if it were possible to conclude that Clapper Rail in the vicinity of the Project were habituated to human presence based on existing levels of use, that does not mean that the construction and operation of an active sports facility drawing hundreds of visitors per day would not adversely impact the Clapper Rail. In addition to noise, light, and habitat impacts, the Project, with its generation of food waste on a daily basis, is highly likely to increase rat and raccoon populations - known predators of the California Clapper Rail.  The EIR, however, does not discuss these impacts. Therefore, the conclusion that Project is consistent with General Plan policies designed to protect biological resources in general and endangered species particularly (Policies CON 1, CON 4, and CON 14) is not supported by the evidence.

 

C.         The Project Is Not Consistent with General  Plan Safety Policies.

                         

                          The City has also failed to ensure that the Project is consistent with General Plan policies designed to prevent flood hazards. Specifically, the General Plan recognizes that levee maintenance is critical to avoiding flood hazards, especially in eastern San Rafael.  Therefore, General Plan Policy S-20 requires the upgrading and maintenance of levees whenever a site is developed. The City has acknowledged the obligation to maintain the levees around the Project site to ensure consistency with this General Plan policy.  April 10, 2012 letter from Kraig Tamborini to Eric Steger, Marin County Dept. of Public Works. Many of the levees that surround the Airport, however, are located on public lands, and the City has now admitted that the County has no obligation to maintain these levees.  The City's solution- to simply require the applicant to maintain the levees even where they are located on public lands - does not ensure that the applicant has the authority or financial or technical ability to maintain the levees as required by the General Plan.       This failure is particularly important here because the levees were never intended or engineered to protect buildings, life and personal property.

 

III.        The City Has Not Adequately Evaluated or Mitigated the Environmental Impacts  of the Project, as Required  by CEQA.

 

The City has also failed to properly disclose, analyze and mitigate significant environmental impacts associated with the Project.  Marin Audubon, Marin Conservation League, and the Gallinas Creek Defense Council have commented extensively on the EIR and FEIR.  The following comments represent just a selection of some of the most serious issues that have not been adequately addressed by the environmental review.

 

A.         The City has Not Adequately Addressed or Mitigated Impacts to Biological Resources.

 

As detailed above, there is no evidence to support the EIR's conclusion that because California Clapper Rail currently inhabits the project area, it has become habituated to human use and will not suffer any adverse impacts from the intensification of use that the Project will cause.  Nor has the EIR adequately supported its conclusions that the Project will not result in significant impacts to the California Clapper Rail. In addition, the final EIR's responses to comments on impacts to the California Clapper Rail are speculative and unsupported by any evidence and do not meet the standards established by the case law.  The Flanders Foundation v. City of Carmel-by-the-Sea (2012) 202 Cal. App. 4th 603.

 

The proposed mitigation measures also remain inadequate. Specifically, although the conditions of approval would prohibit pile driving during the nesting season, they still allow substantial construction to occur during that sensitive time period. As previously commented by Jules Evens, the proposed buffers are not nearly adequate to address construction noise and disturbance. See also Exh.  C (Evens letter).

 

Moreover, the EIR never addresses the tension between maintaining the levees to protect against flooding and the impact that such maintenance will have on endangered marsh species such as the Clapper Rail. As discussed in the attached memorandum from Peter Baye, the construction of the Project and the resulting requirement that the levees be maintained in their current location will cause significant impacts to habitat for endangered marsh species as sea level rise puts additional pressure on habitat. The Project creates the need to maintain the levees in their current location to protect against flood damage, and the EIR includes measures (albeit insufficient measures as discussed above) to address this impact. However, these measures create their own potentially significant impacts that have not been addressed, as required by CEQA. Stevens v. City of Glendale (1981) 125 Cal. App. 3d 986; CEQA Guidelines §15126.4 (a)(l)(D).  See Exhibit D to this Letter.

 

B.         The Project Will Have Significant Cumulative Impacts to Biological Resources.

 

The Project is just one of many uses in the immediate vicinity that will impact the Clapper Rail.  As recognized in the EIR, there are adjacent ballfields, a golf course, and batting cage in nearby McInnes Park. Rather than evaluate the cumulative impacts of this Project in connection with these other existing uses, as required by Public Resources Code section 21083 and CEQA Guidelines section 15130, the EIR simply assumes that the Clapper Rail has become accustomed to these uses. As detailed in the letter of Jules Evens, there is no evidence to support this conclusion. Moreover, under CEQA the EIR should not use existing use as a means of minimizing the impacts of the Project, but should instead evaluate whether the Project, when combined with other past, present, and reasonably foreseeable projects will have a significant impact on the environment.

 

Similarly, the EIR must evaluate the cumulative impact that this Project, combined with sea level rise, would cause in terms of lost habitat for salt marsh species. Because the Project requires the maintenance of levees in a fixed position, it will exacerbate the loss of habitat that will occur with sea level rise.  Yet, the EIR does not evaluate this impact.      See Exhibit D (Baye Comments).

 

C.        The Project Will Result in Significant Greenhouse Gas Emissions That  Have Not been Adequately Disclosed or Mitigated.

The Project will also result in emissions of greenhouse gases that far exceed the numerical standards of significance set by the Bay Area Air Quality Management District for determining the significance of a project's impact on climate change. ¹  Here, it is unclear how compliance with the City's CCAP will reduce the impacts of the project below a level of significance.  First, even with the application of the City's green building standards and LEED certification, the Project's emissions will far exceed the 1100 metric ton per year standard of significance established by BAAQMD, or the 900 metric tons per year standard suggested by the California Air Pollution Control Officers Association.

This is because the vast majority of the Project's GHG emissions are associated with the considerable vehicle traffic it will generate.  Yet, no serious effort has been made to reduce emissions from this vehicle traffic and, in fact, by its nature the Project is designed to attract hundreds of visitors by car every day. There is no way in which this Project could be consistent with the overall GHG reduction goals of the City's CCAP, even if the building itself is built to the minimum LEED standards because LEED certification will do nothing to reduce vehicle trips which are the primary source of GHGs associate with the Project.  See CEQA Guidelines §15183.5 (b)(2).

 

¹ Although a trial court recently found that the adoption of the Thresholds is a project requiring environmental review under CEQA, it did not invalidate the Thresholds on their merits. The 1,100 metric ton/year threshold established by the District is comparable to other suggested thresholds for evaluating GHG emissions. See Exhibit E (CAPCOA Guidance.)

 

D.         The City Has Not Adequately Addressed Safety Impacts Associated With the Project.

 

As detailed above, the project will have safety impacts associated with locating a group recreational facility in the runway safety zones at the Airport.  This inconsistency with the Airport Land Use Handbook will cause a significant environmental impact that has not be adequately disclosed or mitigated by the City.  The Project also poses potentially significant safety impacts associated  with the inadequate levee system and the currently inadequate requirements  to maintain the levee system.

 

The City has also failed to adequately address safety impacts associated with leaded aviation fuel used by planes that take off and land at the airport.  Research indicates that lead levels in air near airports where planes use leaded aviation gas are significantly higher than background  levels.     Thus, a recent study by the National Institute for Environmental  Health Science concluded  that "the combustion of leaded avgas by small airplane engines may pose a health risk to children who live or attend school near airports. The lead in air surrounding airports can be inhaled directly, or the lead may be ingested by children after it settles into soil or dust (U.S. EPA2010)." See "A GeospatialAnalysis of the Effects of Aviation Gasoline on Childhood Blood Lead Levels," Exhibit  F to this letter. The City's response to comments on this issue is not supported by any evidence, but merely the speculation of the EIR preparer regarding  potential impacts.   Comment and Response, p.534. For example, the response to comments claims that the exposure to lead from aviation

gas would be "minute," but makes no attempt to quantify this amount.  Moreover, the EIR fails to address the fact that long-term historic use of the airport would lead to the deposition of lead from aviation gas.  Yet, there has been no soil evaluation done for the Project, even though the literature indicates that lead from aviation gas is deposited to soil, where it later becomes a source of lead to people in the vicinity of the airport.   Id.

 

E.         The City Has Not Analyzed Significant Impacts  Associated with Project  Modifications and Proposals to Address

       Air Safety Hazards.

 

Moreover, the addition of obstruction lights to reduce hazards will create its own environmental impacts.  See MM HAZ-2 in Resolution 12-08 on page 20 of 28 in Mitigation Monitoring and Reporting Program of Resolution 12-08.  The type of obstruction lights have not been specified anywhere in the EIR or otherwise, and the impacts of these obstruction  lights have not been considered. They have potential impacts on wildlife and aesthetics. There are no obstruction lights at the airport currently. If it were not for this project, there would be no obstruction lights.  Although staff has suggested the use of _{AV23 low intensity solar obstruction light, this light does not meet the specifications for obstruction lights approved for use at airports by the (US) Federal}

Aviation Administration. See Exhibits G, H (FAA requirements for obstruction lights.)

 

Finally, the proposal to address safety issues related to air space intrusion through a project redesign should not occur outside of the public and environmental review process. Before the City approves the Project, it should require new site plans that are available for public review to ensure both that the Project does not intrude into the airspace and that the site redesign does not itself cause any new environmental impacts. Without complete plans and an analysis of their impacts, the EIR does not analyze the project as proposed and therefore the project description is not accurate, as required by CEQA. Furthermore, as it currently stands, the requirement for redesign after Project approval is an impermissible deferral of environmental review and mitigation. Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296.

 

F.         The Project Will Result in Significant Noise Impacts.

 

Finally, the City has failed to adequately evaluate or mitigate noise impacts from the Project.  As indicated in our previous comments on the EIR, the noise analysis fails to provide an accurate picture of the impact that this Project will have on the surrounding community.  In particular, the noise analysis relies on average noise measurements, even though the type of noise generated by the Project consists of many peak sounds (such as crowd cheering, shouts, and whistles) that are particularly disturbing to humans.  The noise analysis also fails to evaluate noise impacts at the nearest homes (located 750 feet from the Project) and instead evaluates these impacts at 1000 feet- a distance that is 33% farther away. Finally, the EIR admits that no analysis of night-time noise impacts was conducted even though the evidence indicates that the Project will exceed even the minimal average standards for night-time noise.  Monitoring noise levels at a total of 5 games over the next year is hardly adequate to ensure that night-time use of the fields does not exceed City noise .standards on a regular basis.

 

IV.       The City's Findings Are Not Supported by Substantial Evidence.

 

In view of the deficiencies in the City's review identified above, the City cannot support its findings with substantial evidence

as required by CEQA and the case law.  With respect to Resolution 12-08,

 

•          The findings regarding impacts to listed anadromous fish species, the California Clapper Rail, and Impacts of Nocturnal lighting are contradicted by the evidence submitted by Avocet Research and that discussed above.

 

•          Findings regarding air hazard impacts do not demonstrate that the Project is consistent with the Airport Land Use Handbook nor do they show that the City has adequately reduced any safety impacts below a level of significance.

 

•                    The City cannot find that noise impacts have been adequately analyzed or mitigated since it has not evaluated night noise impacts at all and the monitoring it conducted does not address noise impacts at the closest residence.

 

•                    The City cannot find that the Project will not have significant impacts related to the emission of GHGs because, even if it were to comply with the City's Climate Action Plan, the Project's GHG emissions still far exceed recommended thresholds of significance.

 

•                    The City's finding that there are not unavoidable significant impacts is not supported by the evidence which demonstrates that the Project will have significant impacts on wildlife, public safety, noise, climate change, and wetlands.

 

•          Inasmuch as the Project will have significant impacts that have not been adequately avoided or mitigated, the City's findings regarding project alternatives are inadequate and must be revisited.

 

In addition, the findings in Resolutions 12-09 and 12-10 are legally inadequate. Among other deficiencies, findings regarding consistency with the Wetland Overlay zone are legally inadequate because the Project conflicts with provisions designed to limit recreation to low intensity uses. Findings regarding General Plan consistency are contradicted by evidence that the Project will adversely affect sensitive wildlife species and diked baylands (Resolution 12-09, Finding 1 (j). Findings regarding noise impacts cannot be made because the City did not conduct adequate noise analyses as required by the Noise Element.  (Resolution 12-09, Finding 1(i)).

 

Finally, the finding  that the Project is "substantially in compliance" with the City's Sustainability Element and Climate Action Plan is inconsistent with the central purpose of the Plan to reduce the City's total greenhouse gas emissions and carbon footprint. A defining feature of the Project is its substantial vehicle traffic.

Consequently, the Project is fundamentally inconsistent with the City's Sustainability Element and Climate Action Plan.

 Conclusion:

 

The Project as proposed is simply too intense and inappropriate for the location. Not only is the Project inconsistent with the many City and State policies designed to protect environmental resources and future users of the Project, the EIR fails to adequately address and mitigate these significant environmental effects. At a minimum, the environmental impact report must be revised and recirculated to address the many significant environmental impacts described above and in previous comments to the City. Moreover, because of its many inconsistencies with the City's General Plan and its significant environmental impacts, the City may not approve the Project. Accordingly, the Marin Audubon Society, Marin Conservation League, and Gallinas Creek Defense Counsel request that the City deny the Project.

 

Very truly yours,

SHUTE, MIHALY & WEINBERGER LLP

Ellison Folk

Cc:      Marin Audubon Society Marin Conservation League Gallinas Creek Defense Counsel