Buchalter
55 Second Street Suite 1700 San Francisco, CA 94105 4 15.227.0900 Phone 415.227.0770 Fax
September 27, 2017
File Number: L4342-0002 415.227 .3508 Direct
[email protected] VIA E-MAIL Mayor Sayoc and Councilmembers Los Gatos Town Council 110 E. Main Street Los Gatos, CA 95031
Re:
401-409 Alberto Way- Architecture and Site Application S-15-056, Conditional Use Permit Application U-15-009, and Environmental Impact Report EIR-16-001. Property Owner: CWA Realty. Applicant/Appellant: LP Acquisitions, LLC. Appeal of a Planning Commission Denial of Request to Demolish Three Existing Office Buildings and Construct a New, 2-Story Office Building with Below Grade and At-Grade Parking on Property Zoned CH. APN 529-23-018.
Dear Mayor Sayoc and Members of the Town Council, Buchalter represents LP Acquisitions, the developer of the project located at 401-409 Alberto Way in Los Gatos ("Alberto Way Project" or "Project"). First, on behalf of my client, we thank you for considering the Alberto Way Project and our request that you overturn the Planning Commission's denial of the Project approvals as referenced above. Secondly, at your meeting of September 19, 2017, the Los Gatos Town Council closed the public hearing but invited the applicant and the public to submit written comments for the Council's consideration at its upcoming meeting of October 3, 2017 concerning the Project. Accordingly, the purpose of this letter is to address several key comments that were submitted to you as desk items or that were made at the September 19th Council Meeting in an effort to address any remaining questions about the Project in anticipation of your deliberations at next week's meeting.
ATTACHMENT 2 8
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No new comments were submitted that undermine the adequacy of the EIR or the Project approvals. Importantly, all of the comments submitted last week opposing the Project are the same comments that commenters opposing the Project submitted to the Town in August 2016, and in March 2017, April 2017, and again, in May 2017. Many of these are the same comments presented at the May 10, 2017 Planning Commission meeting. None of the comment letters' included in the September 14, 2017 Staff Report and none of the desk items submitted on September 19th contain any new comments or any information indicating that the Project would result in new significant environmental impacts, and specifically any impacts related to hydrology, geology, traffic (see Exhibit A), aesthetic and visual impacts. As we stated in our May 9, 2017 letter to Jennifer Armer, when an agency prepares an environmental impact report (EIR), the issue is whether substantial evidence supports the agency's conclusions, not whether others might disagree with those conclusions (see e.g., North Coast Rivers Alliance v. Marin Municipal Water Dist. Bd. ofDirectors, 216 Cal.App.4th 614, 624 (2013)). The extensive analysis and information contained in the EIR and the Town's administrative record demonstrates that substantial evidence supports the conclusion that all significant environmental impacts have been mitigated to a less than significant level, and the Town Council may find that the Project complies with the Town's General Plan, zoning and Commercial D~sign Guidelines as further discussed below. That finding has not changed in light of the same comments that were submitted prior to the September 19th Council meeting. If the Council grants the appeal, substantial evidence supports the Council's
certification of the EIR and approval of the Revised Project. One commenter suggested that while they urge the Council to uphold the Planning Commission's denial, if the Council chooses to grant the appeal and approve the Project, they asked the Council to remand the matter back to the Commission. They also believe the Planning Commission was not under an obligation to adopt any findings or to certify the EIR in light of the comments contained in the administrative record. We recognize the Planning Commission and the Town Council have discretion in applying the Town's General Plan policies, zoning regulations, and Commercial Design Guidelines in reaching a decision as to whether or not to approve the Architecture and Site Application (S-15-056) (ASA) and the Conditional Use Permit U-15-009 (CUP) for the replacement of the existing office buildings with a new office building. But even discretionary actions require findings and the findings must be supported by substantial evidence as explained in our May 19, 2017 appeal. As the California Supreme Court explained in the seminal case, Topanga Association for a Scenic Community v. County ofLos Angeles, 11 Cal.3d 506 (1974), this findings requirement particularly applies to decisions, such as those at issue here, which are in adjudicatory in nature. Findings are needed in order to enable the parties to determine
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Buchalter Mayor Sayoc and Councilmembers September 27, 2017 Page 3 whether and on what basis they should seek review. If findings are not provided to "bridge the analytic gap between the raw evidence and the decision," then neither the applicant/appellant nor the public will be able to determine the basis of the agency's decision. That is the problem here. The Planning Commission was all over the map in terms of its expectations regarding a reduced project size when substantial evidence showed the Reduced Scale Alternative was found infeasible. The record reflects that some of the commenters requested that the Project be even smaller and closer to the square footage of the existing buildings, but the EIR determined that this version of the "No Project" alternative would fail the basic project objectives. While commenters and the Commission expressed concern about the Revised Project being "too big," 80-90% of the Commission's requested revisions were incorporated into the Revised Project as noted in the administrative record. For example, the revised design would actually be lower in height than the tallest point of the existing buildings. Similarly, the proposed buildings would be set back from the street frontage in a manner to further protect views when compared to the existing buildings, freeway, landscaping, and other developed conditions on the property that currently block views of the Santa Cruz Mountains today from various vantage points. Notwithstanding the evidence in the record, the Planning Commission never explained how reducing the size of the building by another 9,000 square feet would reduce the neighbors ' concerns. In that way, my client and the Council were left to guess at what an acceptable square footage could be because the Town's policies do not provide any clarification on this point. Because the Commission rejected the Revised Project even in the face of substantial evidence in the record and findings that supported staffs recommendation to approve the Revised Project, we request that the Council exercise its discretion and adopt findings in support of granting the appeal and approving the Revised Project in accordance with the Town Municipal Code. Downtown shuttle service analysis demonstrates further reduction in Project trip generation.
The Alberto Way Project includes a Transportation Demand Management (TDM) Program as discussed in the EIR. The TDM Program includes the use of a shuttle service ("CAT" - Community Area Transit) available for future employees of the proposed office building. As stated at prior neighborhood meetings, the Planning Commission meetings and last week's Council meeting, LP Acquisitions also agreed to make free Downtown shuttle service available to nearby residents for their trips to Downtown retail businesses and services. Some neighbors expressed concern that the use of the CAT would not reduce Projectgenerated traffic. Shuttle service is a standard form of transportation demand management and is often used as a mitigation measure to further reduce trip generation. Exhibit B contains a memorandum prepared by Hexagon that estimates the trip reduction that may be achieved with employee and resident use of the CAT to amplify the information previously provided in the EIR
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Buchalter Mayor Sayoc and Councilmembers September 27, 2017 Page4 and included in our prior written submittals for the Council's consideration. This information shows that there making the shuttle available for daytime use achieves some incidental benefits for the community. LP Acquisitions previously submitted information to the Town regarding the infeasibility of the Reduced Scale Alternative.
According to CEQA, Project alternatives should be considered when the Project results in significant impacts. Since the EIR concluded that the impacts of the Original Project could be mitigated to a less-than-significant level that would not significant or adversely affect the environment, technically, a Reduced Scale Alternative would not be necessary to mitigate significant impacts. If anything, both the Revised Project and the Reduced Scale Alternative merely further reduce impacts already found to be less than significant. Nonetheless, several commenters requested that if the Council grants the appeal, that the Council approve the Reduced Scale Alternative, and not the Revised Project. As Mr. Lamb indicated at last week's Council meeting, the Planning Commission was unable to settle on a consistent direction regarding the reduction in the size of the project, and at times seemed to suggest the Project be reduced to the size of the Reduced Scale Alternative. Even though we submitted information indicating that the Revised Project size of 83,000 square feet was feasible, the Commission suggested that was not.good enough and they denied the Project because LP Acquisitions was unable to reduce the size of the Project to the size of the infeasible Reduced Scale Alternative. One commenter incorrectly stated in its September l 81h submittal, that LP Acquisitions: " ... has not submitted any data sufficient to show that purported additional costs or decreased profits of a smaller project alternative would render it impracticable to proceed with the Project." (Provencher & Flatt, LLP Letter dated September 18, 2016 (sic) page 4). Exhibit C, however, contains excerpts from the letters LP Acquisitions and Buchalter previously submitted to the Town since June 2016 addressing the question of feasibility of the alternatives. As you will see, this information explains why the Revised Project is feasible, and why the 74,260 square foot Reduced Scale Alternative identified in the EIR and proposed by the Planning Commission was not feasible from a cost perspective. We also explained in prior correspondence how the Reduced Scale Alternative failed to meet most of the basic project objectives in accordance with CEQA. Additionally, because the Planning Commission provided conflicting direction as to the scope of any reductions in square footage ranging from 40,000 square to the 74,260 square feet for the Reduced Scale Alternative identified in the EIR, my client used the 74,260 square foot threshold as a proxy for determining whether or not further reductions would fail the feasibility test. In other words, if the Project is infeasible at 74,260 square feet, and if it is infeasible based on the existing condition as reported in the EIR, the
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Buchalter Mayor Sayoc and Councilmembers September 27, 2017 Page 5 Project also fails the test of feasibility at a level below 74,260 square feet. None of the information contained in Exhibit C constitutes new information. For the reasons set forth in Exhibit C, and recognizing that the Revised Project already reflects significant revisions to address the commenters' and Planning Commissions concerns about the massing and scale of the Project (e.g., lowering in building height, greater setback from street frontage, etc.) in afeasible manner, my client submitted information demonstrating its commitment to work with the community to incorporate further reductions in the size and scale of the building. Recirculation of the Draft EIR is not required before the Council were to consider approving the Revised Project. Some commenters requested that the Town recirculate the Draft EIR due to new information that they submitted that alleges the Revised Project would result in new significant geologic and hydro logic impacts, traffic impacts, aesthetic and visual impacts, but just as with the prior comments, the latest comments raise the same issues as the earlier comments opposing the original Project. No information provided in the latest round of comments indicates that the Draft EIR was inadequate or conclusory or that the public was deprived of a meaningful opportunity to review and comment on the EIR. 1 Furthermore, the EIR concluded that all of the significant environmental impacts of the Original Project could be mitigated to a less than significant level. Since the Revised Project is smaller than the Original Project evaluated in the EIR, the Revised Project would result in even fewer and lesser environmental impacts than the Original Project. This is also the case for the Reduced Scale Alternative which was similarly analyzed in the EIR, for which the Town concluded the impacts would be proportionately reduced. Section 15126.6 (d) of the CEQA Guidelines provides that an EIR 's analysis of alternatives shall be limited to feasible alternatives "that would avoid or substantially lessen" any of the Project's significant environmental impacts. In this case, the EIR contains information regarding the environmental impacts of a Reduced Scale Alternative even though neither the Original Project nor the Revised Project would result in any significant environmental impacts, and even though substantial evidence indicates that the Reduced Scale Alternative would be considered infeasible. Thus, the Project EIR complies with CEQA and the Town Council is not required to recirculate the EIR prior to considering approval of the Revised Project, because there are no new significant impacts nor is there a substantial increase in the severity of the impacts previously evaluated in the EIR.
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In fact, we note that in its denial, the Planning Commission relied on information contained in the Draft EIR to decide to deny the Revised Project (because the Revised Project was reduced to the size of the infeasible Reduced Scale Alternative) before they reviewed the EIR, just so they would not have to certify the EIR.
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We respectfully request that the Council consider grant the appeal, certify the EIR, and consider approving the ASA and CUP at its meeting next Tuesday. We appreciate your consideration of the enclosed information and look forward to the Town Council's continued deliberations regarding the Alberto Way Project next.Tuesday.
Sincerely, BUCHALTER essfe.~orporation
By
Exhibits cc (via email): Clerk Administrator Laurel Prevetti, Town Manager Rob Schultz, Town Attorney Joel Pa\llson, Community Development Director Jennifer Armer, Associate Planner Randy Lamb, LP Acquisitions Shane Arters, LP Acquisitions Jolie Houston, Berliner Cohen Dan Orloff, Orloff Williams Dan Kirby, ARC TEC, Inc.
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401-409 Alberto Way Draft EIR - State Clearinghouse Number 2015122041
Dear Ms. Anner: 1
Thank you for the opportunity to submit comments on the above-referenced 401-409 Alberto Way Project Draft Environmental Impact Report ("Draft EIR"). We appreciate the Town's thorough review of LP Acquisitions' proposed office development and submit the following comments regarding the Draft EIR's analysis of the above-referenced project for the Town of Los Gatos' ("Town") consideration.
Background Our property consists of an approximately 2.1 5-acre parcel located in the northwest comer of Los Gatos Saratoga Road and Alberto Way (the "Site"). The Site is bordered by a wooded strip of land and an on-ramp to northbound State Route 17 to the west, a multi-family residential development to the north, and multi-family housing, commercial space, a hotel and restaurant are located to the east across Alberto Way. As the Draft EIR explains, we are proposing to demolish the existing 31,000 square foot office buildings and replace them with two new two-story office buildings, totaling 91,965 square feet, over a two-level, below-grade parking garage (the "Proposed Project"). The Proposed Project is designed to provide the type of high-quality, Class A office space that will attract businesses seeking "A" space to stay in Los Gatos or relocate to Los Gatos (see Revised February JO, 2016 Letter of JustificaLion attached to this letter as Attachment A).
General Comments 2
We have designed our Project so that the proposed development is sensitive to the surrounding neighborhood and addresses each and every potential impact up front as part of the Project. Consistent with this goal, the Draft EIR concludes that the Proposed Project would not result in any significant envirolll!lental impacts. We noted that the Draft EJR included a review of alternatives to the Proposed Project, perhaps because EIRs often describe a range of reasonable alternatives to a Proposed Project. According to Chapter 6 in the Draft EIR, the alternatives considered in the analysis must (1) "feasibly attain" most of the basic objectives, and (2) avoid or substantially lessen any of the 525 Middlefield Road, Suite 118, Menlo Park, CA 94025 BN 20874357v3
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Jennifer Armer June 13, 2016 Page 2 2
significant effects of the proposed project. It is our understanding that the purpose of an EIR alternatives analysis is to determine whether there is a feasible way (other than the Proposed Project) to achieve the basic objectives of a project while avoiding or lessening significant impacts. In light of our understanding of the purpose of an EIR alternatives analysis, we have two concerns about the Draft EIR' s analysis of alternatives which we would like to highlight for your consideration. First, we thought that an ElR was meant to identify alternatives that avoid or substantially lessen significant environmental impacts of the Project. As the Draft EIR concludes, there are no significant effects of the Proposed Project. Since there are no significant impacts, we are unclear as to why an alternatives analysis was even included in the Draft EIR. Since the Town prepared an alternatives analysis in any event, it would be helpful if the EIR were revised to clarify that the alternatives analysis contained in Chapter 6 was provided for informational purposes only, because the Proposed Project did not result in any significant impacts warranting identification of an alternative which would substantially lessen the Project impacts. For example, the EIR could include an introductory paragraph on page 6-2 stating that the alternatives analysis is being provided for informational purposes only and/or to aid in understanding how effects that are already identified as less than significant could be minimized further.
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Secondly, regarding the Draft EIR's identification of alternatives, we note that the EIR included alternatives which would not achieve the basic project objectives. Although the Draft EIR notes this is the case as to both No Project Alternatives, the Draft EIR did not provide any explanation as to whether the Reduced Project Alternative achieved the Proposed Project' s objectives. On page 6-7, the description of the Reduced Project Alternative does not discuss how the reduced total commercial square footage number was derived and on what basis the evaluation has been made. For example, on page 6-9, the Draft EIR lists all 11 of the Project objectives and concludes on page 6-10 that the Reduced Project Alternative is consistent with all of them. Then the EIR indicates that the Reduced Project Alternative conceptually meets most, if not all of the project objectives, and "it is conceivable that this alternative could be considered feasibly compatible with proposed site plans and design for the proposed project," even with a reduction in square footage. The Draft EIR does not explain how the Town reached this conclusion. In fact, for the first five Project objectives and the tenth objective, the Reduced Project Alternative would only partially meet the specified project objective. While the site would be redeveloped with a smaller project, the cost of all of the high-quality architecture and design features would be spread over a smaller amount of square footage thereby ·making these improvements costlier than the Project would experience with its greater square footage. Regarding the sixth through eighth objectives, while the Proposed Project will be able to fund the installation of pedestrian oriented space, groves of trees and enhanced bicycle and pedestrian connectivity, such features will be limited on the property under the Reduced Project Alternative. Addition~lly, the redevelopment of the property may not fully realize a net positive fiscal impact
525 Middl efield Road, Suire 118, Menlo Park, CA 94025
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