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HomeMy WebLinkAbout6.2 Nielsen Property Residential Project Attch 3 (3)~~~ -~~ ~ MorganMillerBlair A lAW CORPORATION 1331NORTHCAIIFORNIAB~ULEVARU,SUITE200 WALNUTCREEK,CALiFOflNIA94596-4544 925.937,3600 925.943.itO6rax www.mmblaw.com ParRicrn E. CcmT[N {925} 979-3353 pcuriin(a)mmblaw.com VIA FACSIMILE and U.S. MAIt, Erica Fraser Senior Planner City of Dublin 100 Civic Plaza. Dublin, CA 94568 March 19, 2009 Letter 4.1 ~E(SEI~E~ MAR 2 0 2009 !?U~Lt1V PLANNING Re: PA - 57-057 Nielsen Property Comments on Draft Supplemental Environmental Report Our File No. 10028-002 Dear Ms. Fraser: We represent The Quarry Lane School located at 6363 Tassajara Road in Dublin ("the School"). The School is immediately adjacent to and south of the proposed Nielsen Development Project ("Proposed Project"). The School was built for 950 students and contains g~rades pre-school through 12 a.nd a before and after school care program. The School has serious concerns about the impacts that will be generated by the Proposed Project and provides these comments on the Draft Supplemental Environmental Report (SDEIR). This letter includes both general and specific cornments on the SDEIR. i. GENER.AL COMMENTS A. Identification of Miti~ation Measures. The SDEIR is a supplemental environmental document to the Eastern Dublin EIR which analyzed impacts from the Eastern Dublin Genaral Plan Amendment and Specific Plan in 1993. The Eastern Dublin EIR analyzed various impacts atad recommended mitigation measures fox development on the Nielsen property and other properties in Eastern Dublin. Some of ihese impacts and mitigation measures are referenced in the SDEIR but it is not clear what mitigation measures from the Eastern Dublin EIR will be required far the Propased Project. The SDEIR must identify all the mirigation measures that will be required for the Proposed Project, which includes those measures from the Eastern Dublin EIR and those additional measures from the SDEIR. All applicable measures should be identified in appropriate topic impact sections and in the Table Summary (pp 1-1--1- 8). Without identifying all the measures, it is impossihle to know if the Proposed Project will 4.1.1 MMTi:10028-002:985638.1 ~~~ 7~~ ~ Erica Fraser March 19, 2009 Page 2 mitigate the impacts. Also, all the mitigation measures must be identified so they are included in the mitigation monitoring program for the Proposed Project. B. inconsistent with East Dublin Snecific Plan and its EIR. As explained here 4.1.2 and in the specific comments belaw, the Proposed Project is inconsistent with nunaerous policies in the Eastern Dublin Specific Plan. This is made ctear by the comments the City submitted on the Draft EIR that was prepared by the County for the School (attached as Exhibit 1). Specifical~y at pages 4 and 5 of the Ietter, the City commented that the School was inconsistent with several of the laud use and open space polices in the EDSP. The City concluded in the letter that it could not support the School in its original design due to the significant land use, visual and environmental impacts that it would create. The City can only reach this same conclusion on the Proposed Project. The Proposed Project will create more significant impacts then the School as was 4.1.3 ; originally designed. The Proposed Project and School sites are both 10 acres and the Proposed i Project has a much larger development foot print than the School. Also, the School is located at ~ the bottom of the hill and the Proposed Project is located on the top of the hill which has an elevation of up to 577 feet. The School was significanty revised in response to the City's . ! ~ comments. ~ i The SDEIR must explain how the Pro~ 'roject meets or addresses all the comments 4.1.4 i the City made in the attached letter as they relate to the Proposed Pzoject. We identified by i numbex on the letter the various comments that must be addressed at a bare rninimum. ! Also, the SDEIR is inconsistent with analysis in the Eastern Dublin EIR. For example, 4.1.5 as explained in the City's staff report at page 11 and 12 for the School on the request for a minor amendment dated May 25, 2004 (attached as Exhibit 2}, the Eastern Dublin EIR concluded that development in the area would result in significant and unavoidable impacts relating to the loss of open space land, traffic, energy conception, geology, air quality, and noise. Yet, the SDEIR does not identify these impacts as unavoidable and fails to discuss the real extent of these potential impacts. This discrepancy must be addressed. Also, as required for the School, a Statement of Overriding Considerations must be prepared before the Proposed Project is approved (see page 11 of Exhibit 2). II. SPECIFIC COMMENT A. Traffic. The traffic analysis and trip generation studies fai! to consider the 4.1.6 afternoon peak period for the School. The afternoon peak period for the School would be earlier than the afternoon peak period studied by the Eastern Dublin EIR The traffic analysis determined that 88% of the projected tra:ffic will travel an Tassajara Road. The School driveway is adjacent to the Proposed Project on Tassajara Road. Therefore, the SDEIR must include a level of service analysis for the morning and afternoon school peak period for Tassajara Road and the intersections adjacent to the School. . MMB:10028-002:985638.1 ~~~~~~- Erica Fraser March 19, 2009 Page 3 B. So~ls and Geolo~y. This section of the SDEIR is inadequate since it fails to 4.1.7 analyze the actual grading and soil impacts relating to the Proposed Project and fails to identify specific mitigation measures to address those impacts. First, the analysis is so vague that the true impacts of the Froposed Praject cannot be ascertained. This a.nalysis does not identify at what level the homes would be conshucted. The site is extremely hilly and rises 570 feet above sea level. Also, the amount of grading for the Proposed Project must be quantified and a conceptual grading plan must be part of the SDEIR. Will the grading balance or will it be necessary to haul off-site? If off-hauling is a possibility this impact must be analyzed (i.e. routes, amount of soil to be hauled, number of txucks, impacts and damage to roads). ~ Im order to minimize site grading and preserve undisturbed hillsides along the northeast 4.1.8 corner of the School site, strict mitigation measures and conditions of approval were imposed on the School. Also, the City required the School to be redesigned to addresses these impacts. For example, grading and the school buildings were required to be located below the 500 foot elevation rnark. Please confirm that the Proposed Project will also adhere to these requirements. This section also fails to describe and analyze the unpacts of the required retaining walls. 4.1.9 How many retaining walls will be required? Where will the retaining walls be located7 What . will be the height of the retaining walls? Who will maintain the retaining walis? Will the retaining wa11s be landscaped and screened? What are the visual impacts that will result from these retaining walls? The SDEIR states that the specific measures identified in the geotechnical investigation 4.1.10 ' will reduce impacts to spreading and liquefaction to a Iess than significant ievel. (SDEIR p. 67.) These measures are not analyzed or even identified in the SDEIR. Without such an analysis a canclusion cannot be reached that the measures will mitigate this impact to less than significant ° level. The School is located immediately below the Proposed Project site. Adequate measures 4.1.11 must be in place to insure that no impacts will result to the School with respect to grading and soil movement. The School took considera.ble pains to ensure the stability of the hillside and it needs confirmation that the Proposed Projeat will not jeopardize the stability of the hillside. C. Bio_ Ioev 1. Special Status Species. The Proposed Project has the potential to impact three special status species identified in 4.1.12 the SDEIR: the Wes#.ern Bunrowing owi, Loggerhead Shrike and White-tailed kite, The Proposed Project includes suitable nesting habitat for these special status species. The mitigation measure (SM-BTO-2) for impacts to the special status bird species provides that pre-construction surveys shall be completed to prevent impacts to nesting birds. If MMB:lOQ28-002:485638.1 ~~..~ ~ ~~~ Erica Fraser March 19, 2009 Page 4 active nests are found, setbacks are to be established by a qualified biologist and maintained until the young have fledged. If burrowing owls are found outside of the nesting season, they are to be passively relocated subject to the authorization of DPFG. The mi~igation measure is inadequate and not legally sufficient because it delegates the determination and responsibility for mitigation to other regulatory agerncies without the lead agency formulating its own mitigation measure. While other responsible agencies may have jurisdiction over the identified protected species and those agencies have the abiliry to impose mitigation measuxes for impacts to such species, CEQA requires that each agency is required to comply with CEQ-~ and meet its responsibilities, including evaluating mitigation measures and alternatives. A condition merely requiring compliance with the conditions af another agency is not adequate mitigation under CEQA. Since the project site includes suitable habitat for the special status species, the loss of that habitat needs to be mitigated. 'The current mitigation measure fails to do so. 'The SDEIR 4.1.13 fails to identify or consider adequate mitigation for the loss of habitat such as on site ar off site preservation of similar habitat and obtaining habitat loss permits frozn xelevant agancies. Instead, the mitigation measure provides for relocation of nesting birds identified an the site, but . does not include any mitigation for the loss of habitat. Further, the mitigation measure improperly defers mitigation for the biological i.mpacts 4,1.14 associated with the Proposed Project. "Deferral of mitigation is permissible where the local agency commits itself to mitigation and lists the aIternatives to be considered, analyzed and possibly incorporated into the mitigation plan. On the other hand, an agency goes too far when it simply requires a project applicant to obtain a biological report and then comply with any recommendations that may be made in that report." Endangered Habitats League v. County of Orange 131 Cal. App. 4tli 777 (2~05); San Joaquin Raptor Rescue Cenier v. County of Merced, 149 Cal. App. ~th 645 {2007). The success or failure of mitigatian efforts in regard to impacts on the special status species and their habitat may largely depend upon ihe setbacks established aand xelocation plans that have not yet been formulated, and have not been subject to analysis and review within the SDEIR. The fact that the futare relocation plans would be prepared only ai~er consultation with the DPFG does not cure these basic errors under CEQA, since no adequate criteria or standards are set forth. See San Joaquin Raptor Rescue 149 Cal. App. 4th at 671. Therefore, the mitigation measures with respect to loss of special-status species habitat is inadequate, since the SDEIR fails to mitigate for the loss of habitat. In addition, the SDEIR improperly defexred formulation of reloeation plans for any special status species discovered on site. MMB:10028-002:985638.i ~~ ~ ~~~ Erica Fraser March 19, 2004 Page 5 2. Herita~e Oak Az~ alternative to the Proposed Project or a mitigation measure should be considexed to 4.1.15 preserve the heritage oak tree. If such an alternative or measure is considered and rejected as infeasible, the mitigation measure (which currently requires replacement of the oak with 3 36- inch box size oak trees on site} must include an on-going maintenance and monitoring requirement to ensure the survival of the replacement oaks. 3. SQecial Status Plant Species The Proposed Project has the potentiat to impact four special statu~ plant species. 'The 4.1.16 mitigation measures require pre-construction surveys and if the species are found, the applicant shall either avoid the plant(s) or transplant to an on-site or off-site suitable location pursuant to permits from regulatory agencies. ~ While courts recognize that there are some circumstances where certain aspects of mitigation may be deferred, the SDEIR. must articulate specific performance criferia and rxiake approvals contingent on finding a way to meet them. CEQA Guideli.nes, section 15126.4, subdivision (a)(1){B) specifies as follows: "Formulation of mitigation measures should not be deferred until some future time. However, measures may specify performance standards which would mitigate the significant effect of the project and which may be accomplished in more than one specified way." Similar to the mitigation measures for the special species birds, the mitigation measure for the special species plants contair~ no specific criteria or standard of performance. The success or failure of mitigation efforts for the special species plants largely depend upon relocation planc that have not yet been formulated, and have not been subject to analysis and review within the SDEIR The fact that the future relocation plans would be prepared under the direction of regulatory agez~cies does not cure these basic errors under CEQA, since no adequate criteria or standazds are set forth. The mitigation measure should establish performance criteria and an ongoing maintenance and monitoring plan to ensure viability of the special status species plants. D. Visual Resonrces 1. Impacts to Scenic Vistas and Corridors. The SDEIR states that significant and unavoidable impacts will occur with respect to visual resources including adverse impacts on scenic vistas and corridors, minimal preservation of hillside areas and limited view corridors. . The SDEIR recognizes that the Proposed Project is located within an area designated as a visually sensitive zidgeland - restricted development bespite that, the developed area of the Project would encompass virtually the entire site, leaving only one area as natural open space. 4.1.17 MMB:I0028-0(}2:985638. ! ~3 ~ ~~ Erica Fraser March 19, 2009 Page 6 (SDEIR, p. 81}. Conshuction of the Proposed Project would include grading and/or construction of a major portion of the site. (SDEIR, p. 80). The develop~nent plan for the Proposed Project shows that a substantial amount of the site would be developed with urban uses such as dwellings, roads or similar uses. (SDEIR p. 81). Since the Proposed Project site is tocated against a scenic comdor, the SDEIR included a visual analysis as required by Action Program 6R, and determined that the Proposed Project design presents potential adverse visual impacts. Undcr the proposed development plan, a substantial portion of the hillside visible from Tassajara Road would be developed for housing and minimal views would remain of the existing natural hillside. This would include ten lots within the visually sensitive ridgeline area. Additional grading activities~ would also occur in the visually sensitive ridgeline area and would alter the appearance of the area designated as visually sensitive. (SDEIR, p. 81). The SDEIlZ found these impacts to be significant and unavoidable {see SM-VIS-1). The SDEIR is fundamentally flawed in that it determines that no supplemental mitigation measures are available to mitigate the identified impacts. An attempt must be made to identify measures to reduce these impacts including a reductian in the number of units. The SDEIIt considered only the no project alternative, the townhouse alterative and an 4.1.18 alternative with development only at the base af the knoll and fflund that reducing development to a few lots at the base of the knoll would make the project financially infeasible. However, the alternati~ves failed to analyze reducing the number of units by removing only the units in the most sensitive ridgeland area. By reducing the Proposed Project by ten lots (removing lats 23-33) the Project could avoid the visuaily sensitive ridgelands area, and preserve the existing appearance of the visually sensitive area thereby mitigating the visual impact in a manner more consistent with the goals and polices in the adopted Eastern Dublin Specific Plan. Eliminating the ten lots in the most sensitive area would still allow development of twenty-four lots. At a minimum, CEQA requires analysis of a11 mitigation measures, which can then be rejected as infeasible if wairanted. Moreover, while a mitigafion measure ar alternative may be found infeasible on 4.1.19 economic grounds, that determination must be supported by substantial econornic evidence in the record. Uphold Our Heritage v Town of Woodside, 147 Cal. App. 4th 587, 501 (2007); Public Resources Code section 21481. See also, Citizens of Goleta Valley v. Bd of Supervisors, 197 Cal. App. 3d 1167 (198$) finding that a xecord that included no analysis of comparative costs, profits, or economic benefits of scaled down project altemative was insuf~icient to support finding of ecanomic infeasibility. The City must make the determination on finaricial infeasibility based on substantial evidence in the record. The SDEIR only includes a conclusory statement that there are no feasible mitigation measures because any such measure will render the project economicallp infeasible due to the cost of the infrastructure, This simple statement is not adequate evidence to MMB:10028-002:985638.1 ~~~ ~.~~- ~ Erica Fraser March 19, 2~09 Page 7 support a finding of infeasibility. Further, as discussed previously, mitigation measures were not considered which lessen the impact on the most visually sensitive ridgelands, such as reraoving 10 units, and analyzing the feasibility of development of the site with 24 units. 2. Inconsistency with Eastern Dublin EIR. The impacts of the Proposed Project are inconsistent with the Eastern Dublin Specific 4.1.20 Plan which only allows lower spur ridges to be developed within the visually sensitive ridgelands - restricted development area if such deveiopment meets certain reyuirements, including that development will not obscure or appear to extend above the major ridgeline to the north; devetopment is not silhouetted against the horizon when viewed from the~ity or county designated scenic routes and that grading for such development does not visually scar sensitive ridgelands or hillsides. The Proposed Project also violates a number of goals and policies in section 6.3.4 of the Specific Plan. In order to approve the Proposed Project, the Speciflc Plan policies would need to be amended. Visual impacts previously identified in the Eastern Dublin EIR were reduced to a level of • 4.1.21 insignificance by implementation of the identified Specific Plan pnlicies. However, since the . Proposed Project does not comply with those implementing policies, the identified impacts in the Eastern Dubli.n EIR have not been reduced to a level of insignificance. Specifically, Impact 3.8 E sta.tes that structures built in proximity to ridges may obscure or fragment the profile of visually sensitive ridgelines. Mitigation Measures 3.8/4.0 - 4.5 are included in the Eastem Dublin EIR to reduce this imgact to a level of insignificance. Those mitigation measures provide that no deve3opment is allowed on the main rid~eline and require that development on the foreground hills must maintain a backdrop of natural rid~elines and mininaizes obstruction of natural views. Since the Proposed Project fails to comply with those mitigation measures, the impacts identified ixi the Eastern Dublin EIR have not been mitigated to a level of insignificance. Although tlne stated purpose of the detailed visual analysis required by Action Program 6R is to be able to adjust the project design ta minimize visual impacts, the project has not been redesigned to minimize the significant visual impacts and inconsistencies with the Specific Plan. Also, the visual analysis does not mention the Specific Plan community guideline to i 4.1.22 minimize grading of slopes over 30% and to minimize visual impacts along Tassajara Road. T'his was a very big concern raised on the School. The School was required to implement extensive and costly mitigation measures and be redesigned in arder to ensure this guideline was met. This guideline must be considered in the SDEIR At a minimum, the Proposed Project should be re-designed, consisterit with the 4.1.23 requirements of Mitigation Measure 3.8-4.5, and the goals and policies of the Specific Plan, to remove all units from the main ridgeline (i.e. rennove at least 10 units, consisting of lats 23-33) Mh1B:10028-002:985638.1 ~ ~ 5-- ~.~- ~ ~ Erica Fraser March 19, 2009 Page 8 which are wit~un the visually sensitive ridgelan.ds area, and remove #hose units impairing scenic views that appeax to extend above the scenic backdrop when viewed from Tassajara Road (a designated scenic route). 3. Light and Glare Impacts The SDEIR identifies the increase in Iiglit and the spill-over and associated glare onto 4.1.24 adjacent properties and roadways as a significant impact. The SDET~ fails to adequately review and identify the light and glare impacts and the proposed mitigation measure improperly defers review of the design of light fixtures. This mitigation measure provides only that: "Light fixtures installed as part of the project shall be eguipped with cut off lenses and d'u°ected downward to avoid spill over of lights onto adjacent properties ar roadways. The design of light fixtures shall be specified on final building and improvement plans". The mitigation measure fails to include any specified performance measures or provide for approval of such light fixriires or the timing of the cut=off lenses. Without identifying the level of reduced light spill over and glare that should be rnet with the mitigation measure in place, it is impossible ta detern~ine if the proposed mitigation measure reduces the impact to a level of insignificance. . This type of deferred mitigation has been repeatedly struck down by the courts. See Endangered Habitats League v. County of Orange 131 Cal. App. 4th 777 (2405}; San Joaquin Raptor Rescue Center v. County of Merced, 149 Cal. App. 4th 64S (2007). Similax to the mitigation measures that were rejected by the courts, there are no identified criteria for the design of the lig~it fixtures or any performance measures to measure the light and associated glare on adjacent properties. The proposed mitigation measure does no more than identify the light fixtures on the plans, without setting any standards to be met. 4. ~ecific Comment Pa~e S] of the SDEIR contains the two followin~ inconsistent statements "The proposed project, as configured, does not contain aiay view conidors to knolls and 4.1.25 foregrourid hills." "The proposed project, as configured, would contain a limited view corridors [sic] to knolls and foreground hills. This wotild be at the project entrance at the intersection of Silveria Ranch Road and Tassajara Road." These statements should be clarified and the inconsistency should be remedied. 5. Compliance with MM 3 5/22-24 in Eastern Dublin Specific Plan. The I'rogosed Project should be con~gured to comply with mitigation measures 3.6/22- ! 4.1.26 24 and should not exceed 3:1 slopes or exceed the 500 ft. elevation nnark. Mr. Nielsen previously objected to the development of the School and based on those objections, the SGhool was required fo revise its project to locate the playfields belaw the 500 ft. elevation mark, restrict • MMB;10028-002:985638.1 ~ ~ 7~. ~ Erica Fraser March 19, 2009 Page 9 grading below the 520 ft. elevation mark and not exceed 3:1 slopes. The sa.me constraints that were placed on the adjacent properly as demanded by Mr. Nielsen must be applied to his own development. The visual resources should be protected to the same extent as has been requued of aIl neighboring properties. E. Noise While the SDEIR identifies and analyzes impacts from noise generated by the School on 4'2'2~ the completed residences within the Proposed Project, the SDEIR fails to analyze and identify potential construction noise impacts from the Project on the School. An acoustical study must be done as part of this SDEIR so that the construction noise iznpacts can be analyzed. The City cannot legally conciude that the Project would not have significant effects on the School without knowing the results of an acoustical study studying construction noise impacts. Any noise impacts to the School during school hours should be identified and specific mitigation measures must be identified. The Eastern Dublin EIR Mitigation Measure 3.10lE requires residential projects to prepare a Construction Noise Management Plan (SDEIR, p. 118). The SDEIR recommends that "items" listed in the Project Acoustic Report be included in the Construction Noise Management Plan for the Proposed Project. Yet, these measures are not identified as xnitigation measures for the Proposed Project and as a result, there is no assurance that they will be innposed on the Project. In order to comply with CEQA, Mitigation Measure 3.10/E must be indentified as mitigation measure in the SDEIR and the items listed in the Project Acoustic Report must also be incorporated into a mitigation measure. However, one of the measures from the Project Acoustic Report requires that a construction site noise coordinator. be available to respond to neighbor's complaints and "taice appropriate measures to reduce noise", This measure is vague and fails to identify specific, alternative appropriate nneasures to reduce noise levels to an acceptable level during school hours. In Endangered Habitats League, County of Orange 131 Cal. App. 4th 777, 794 (2005) the court struck down a similar mitigation condition for construction noise. In that case, the SDEIR required the developer to submit an acoustical analysis describing the noise and preliminary mitigation measures if required before obtaining a building or grading permit. The SDEIR stated that the report must dernonstrate exterior and interior noise standazds to the satisfaction of the county's building permit division. The court found tlus proposed rnitigation measure inadequate since `no criteria or alternatives axe set out. Rather this mitigatian zneasure does no more than require a report to be prepared and followed, or allow approval by a county department without setting any standards." Id. MMB:10028-002:985638.i ~7 75~. ~ Erica Fraser March 19, 2009 Page 10 F. Alternatives Analvsis. As discussed previously, the alternatives analysis , 4.1.28 improperly rejects the alternative with a lower density project due to financial infeasibility of a project with fewer units. While economic feasibility can be a basis for concluding that an alternative is infeasible, Public Resources Code section 21081.5 requires that a fmding of infeasibility be based on "substantial evidence in the record." See also Uphold Our Heritage v Town of Woodside, 147 Cal. App. 4th 587, 601 (2007). The applicant has the burden of demonstrating that the alternative project would be financially infeasible. 1'here is no evidence in the record regarding the economic viability of the project with fewer units, and therefore the SDEIR improperly concludes that the alternatives are i.nfeasible. The alternatives analysis is incomplete in that it needs to consider~lternatives that are 4.1.29 capable of reducing the visual impacts. The altematives consider an extremely reduced density, but do not consider slightly reducing the density to minimize impacts to the rnost visually sensitive areas. At a minimum, the alternatives should consider and analyze removing ten lots proposed to be located in the most visually sensitive area on the site. III. CONCLUSION We urge the City to analyze the Propflsed Project with the same criteria as it has done 4.1.30 with other projects in the past, like the School. The CiTy must require the Proposed Project to adhere to the same requiremen#s and rules as previously approved projects. Furthermore, the SDEIR must be revised to be consistent with the analysis and requirements that were contained in other environmental documents for projects in this same area. Also, we urge the City to revise the SDEIR with the information requested in this letter and because the information will constitute "new significant informa#ion" as defined in CEQA, the revised SDEIR will need to be recirculated for further review and comment. Thank you. PEC:kIm Enclosures cc: Client Very truly yours, MORGAN MILLER BLA7R `~ PATRICIA E. CURTIN MMB: ] 0028-002:985638.1 ~ ~ c~ ~~~". ~ Letter 1.1: U.S. Fish & Wildlife Service • Comment 1.1: The Service is concerned about potential impacts to special-stafius species, including California red-legged frog, California Tiger salamander and San Joaquin kit fox. Response: Comment noted. See following comments and responses. Comment 1.2: The commenter notes that the California red-legged frog is the largest native frog in the western U.S. and are generally associated with deep, still or slow-moving water. However, individuals have been found in ephemeral creeks, drainages and ponds. This species disperses upstream and downstream and can include an area within 1-2 miles of a breeding site that stays moist and cool throughout the summer. Recent records exist for red-legged frog sitings within 0.8 mikes east and 0.2 mile north of action area. Based on the biology of the red-legged frog, the close proximity of active breeding habitat and the location near known foraging habitat, it is highly likely that this animal disperses within the action area. Response: In response to the potential presence of California red-legged frog on the Project Site, a biological site assessment to determine any potential impacts of the Project on biological resources was conducted by LSA Associates and peer- reviewed by the firm of WRA. The LSA biological assessment is contained in Appendix 8.6 of the DSEIR. Based on Table B of the LSA reconnaissance, California red-legged frog species have been identified in the Northern Drainage Mitigation area and Tassajara Creek near the Project Site and the Site is physically suitabie for dispersal; however, the value of dispersal is considered low due to the presence of adjacent Tassajara Road (a major arterial roadway), Silvera Ranch Road and the adjacent Silvera Ranch residential development. No creeks, streams or other bodies of water are present on the Project Site. Therefore, based on specific data about surrounding area and Site from surveys, the potential for the red-legged frog to occur on-site is unlikely. However, Project is subject to Mitigation Measures 3.7/20-22 in the 1993 Eastern Dublin EIR relating to this species. Comment 1.3: The commenter notes that California tiger salamander inhabits low elevation grassland and oak savanna plant communities. California Deparhnent of Fish and Game records indicate recent occurrences of tiger salamander less than 0.6 miles east and 0.25 miles west of the action area. Based on the biology of the species and these records, it is likely that this species disperses within the action area. Response: Table B of the same biological reconnaissance of the Project Site referenced in the Response to Comment 1.2 notes that grassland on the Project Site combined with ground squirrel burrows represents a potentially physically suitable habitat for tiger salamander, However, Table B also notes that residential development to the north (Silvera Ranch) combined with Fallon Road Nielsen Development Project Final Supplemental EIR Page 7 City of Dublin April 2010 ~ ~ ~ ~.~~~- ~ construction and the presence of Tassajara Road immediately west of the Project Site isolate the Nielsen Site from the nearest tiger salamander breeding ponds located approximately 2,750 feet to the northeast and 3,750 feet to the east. Therefore, the potential for California tiger salamander species to occur on the Project Site is considered low. However, Project is subject to Mitigation Measures 3.7/20-22 in the 1993 Eastern Dublin EIR relating to this species. • Comment 1.4: The commenter notes that suitable grassland habitat exists for San Joaquin kit fox in the action area and there is a recorded occurrence of a kit fox at its den less than 0.25 mile from the Project Site. Based on the biology of the species and a nearby record of a kit fox at its den, it is likely this species disperses within the action area. Response: Table B of the biological reconnaissance of the referenced in the Response to Comment 1.2 note that the small size of the property (approximately 10 acres) and close proximity of surrounding development makes the potential for kit fox to occur on the Project Site unlikely. No kit fox have been identified within miles of the Project site and none have been recently observed. The CDFG 2009 reference in the comment letter is to a record that is over 35 years old, never verified and the location is vague. In the unlikely event kit fox are identified on the Project Site, the Project applicant is required to comply with the Kit Fox Protection Plan which has been adopted by the City of Dublin as an implementation measure of the Eastern Dublin Specific Plan EIR. The Kit Fox Protection Plan is a comprehensive response to the potential for kit fox presence. The Kit Fox Protection Plan was adopted when the Eastern Dublin project was approved in 1993 and has been updated since then. It continues to be adequate mitigation in the unlikely event that kit fox are found to be present. Comment 1.5: The commenter notes that Section 9 of the Endangered Species Act prohibits the take of any federally listed animal species by any person subject to the jurisdiction of the United States. The commenter recommends authorization for an incidental take permit be obtained for the California red-legged frog, California tiger salamander, and San Joaquin kit fox prior to certificate of the final EIR, The comment letter does not authorize a take for the special-status species identified in this comment letter. Response: As stated in the Responses to Comments 1.2 through 1.4, the City of Dublin does not believe that the Project Site is used by California red-legged frogs, California tiger salamander or San Joaquin kit fox, so that no incidental take permits are required. Letter 2.1: California Department of Fish and Garne • Comment 2.1.1: The commenter notes that the DSEIR identifies potential impacts to four special-status plant species: big-scale balsamroot, big tarplant,~Congdori s Nielsen Development Project Final Supplemental EIR Page 8 City of Dublin April 2010 ~ / d -~,~ ~ tarplant and showy madia. The DSEIR recommends pre-construction surveys. The Departrnent finds this mitigation measure not appropriate for surveying for these annual flowers. The Department advises focused plant surveys for each of these species, which should be conducted during each plan~s specific blooming period. The big-scale balsamroot's blooming period began in March. Response: Consistent with DepartmenYs protocols, focused protocol-level plant surveys will be completed by a qualified biologist for each of the four special status plant species identified as having a potential to occur on the Project Site. These surveys will follow CDFG guidelines for rare plant surveys and will be conducted during the peak blooming season for each of the four species. Specifically, surveys will be conducted in April for big tarplant and showy madia, and in July for saline clover and Congdori s tarplant. All surveys will be completed before initiation of any project construction-related activity occurs on the Site. Comment 2.1.2: The commenter notes that the DSEIR identifies potential impacts to three special-status bird species: Western burrowing owl, loggerhead shrike and white-tailed kite. The DSEIR recommends pre-construction surveys. The Department finds this mitigation measure not sufficient for surveying these bird species. The Department advises that a site-specific proposal for the survey and eviction of western borrowing owls be reviewed and approved by DFG prior to implementation, that focused surveys be done during the breeding season for the loggerhead shrike and the white-tailed kite. Response: Prior to conducting the Western Burrowing Owl pre-construction survey, a site-specific survey protocol will be completed by a qualified biologist and provided to CDFG for review and input. All survey, eviction, and mitigation for this species will follow the approach outlined by CDFG in their March 25, 2009 comments on this species. Consultation with CDFG will be conducted regarding the size and duration for protective nest buffers established if either Loggerhead Shrike or White- tailed Kite nests are located during pre-construction nesting bird surveys on the Site. Commenf 2.1.3: The commenter states that a California Endangered Species Act (CESA) permit must be obtained if the Project surveys reveal the potential to result in the take of plant or animal species listed under CESA will require a CESA Permit. The CEQA document must therefore specify impacts, mitigation measures and include a mitigation monitoring and reporting program, as well as other items as Iisted by the commenter. Response: The above comments are noted and, if required based on follow-on protocol-level studies, a CESA Permit will be obtained prior to commencement of grading activities on the Site. Nielsen Development Project Final Supplemental EIR Page 9 City of Dublin April 2010 ~9~ ~ -~.~-~ Letter 3.1: Dublin San Ramon Services District (DSRSD) Comment 3.1.1: The commenter makes several points with respect to the DSEIR, including that the Project Site is located within the DSRSD water service area and DSRSD intends to provide future water service to the proposed Project, the Site is within the sanitary sewer area of DSRSD, and the Site is within the recycled water service area of DSRSD. DSRSD agrees with the conclusions of the DSEIR that adequate water supplies and facilities needed to serve the Project are either existing or planned. DSRSD also agrees with conclusions in the DSEIR that it will be able to meet the sewer treatment service demand of the proposed Project and that recycled water would be available to serve the proposed Project. Recycled water will help in lessening the amount of potable water needed to serve the increased number of dwellings on the Site. Response: This comment is noted and no further discussion is required. ~ Comment 3.1.2: The commenter notes that planning and construction should be coordinated with DSRSD to ensure that such activities do not conflict with existing DSRSD facilities and installation of new utilities are completed in conformance with applicable DSRSD master plans and other standard procedures. ° Response: This commenf is noted. Page 14 of the DSEIR notes that approvals will be required by DSRSD for water and wastewater connections. As conditions of issuing such approvals, the District may require that Project construction does _~ not conflict with existing DSRSD facilities and that all futtxre utility improvements are installed in a manner consistent with DSRSD master plans, procedures, specifications, drawings and all other applicable requirements. Letter 3.2: Alameda County Public Works Agency ~ Comment 3.2.1: The commenter notes that the length of Tassajara Road within Alameda County is to be annexed by the City of Dublin. Please verify that annexation will not leave any short sections of Tassajara Road in an unincorporated portion of Alameda County. Response: The City of Dublin has annexed all of Tassajara Road right-of-way near A the Project Site and no gaps of unincorporated properties exist in this portion of Eastern Dublin. Therefore, the concern of the commenter has been met. Comment 3.2.2: The commenter states a concern about augmentation of stormwater runoff from the Project Site that would impact the flow capacity between the Project Site and the Alameda County Federal Project in western Alameda County. There is also a potential for Project runoff to increase the rate of erosion along those same watercourses that could cause localized damage and deposit silt in the Federal Project. There should be no augmentation in runoff quantity or duration from the project Site that will adversely impact downstream Nielsen Development Project Final Supplemental EIR Page 10 City of Dublin April 2010 ~~ ~~ ~ drainage facilities. If downstream drainage facilities are demonstrated by the sfiudy to be inadequate, the developer is required to upgrade any undersized drainage facilities. Response: Commenter's concerns about potential increases in siltation will be addressed by adherence to Supplemental Mitigation Measure SM-WATER-1 that requires the project developer to prepare and implement a Stormwater Pollution Prevention Plan that outlines Best Management Practices (BMPs) to avoid spill over of material off of the Project Site. In addition, the Project developer is required to adhere to Supplemental Mitigation Measure SM-WATER-2 that requires preparation of a drainage and hydrology plan using, Regional Water Quality Control Board, Zone 7 and City of Dublin drainage criteria. With the incorporation of these Mitigation Measures, the resulting impact will be less than significant. • Comment 3.2.3: The commenter states that the applicant should provide measures to prevent discharge of contaminated materials into public drainage facilities. It is the applicant's responsibility to comply with a~l water quality standards and regulations. Response: As noted in the response to Comment 3.2.2, the Project developer is required to adhere Supplemental Mitigation Measure SM-WATER-1 that requires the Project developer to prepare and implement a Stormwater Pollution Prevention Plan that outlines Best Management Practices (BMPs) to avoid spill over of contaminated materials off of the Site and into public drainageways. Therefore, the concern of the commenter has been met. With the incorporation of these Mitigation Measures, the resulting impact will be less than significant. Letter 3.3: Alameda County Congestion Management Agency • Comment 3.3.1: The commenter notes that the proposed Project would not generate more than 100 p.m. peak hour trips and is therefore exempt from the land Use Analysis Program of the Congestion Management Program. Response: This comment is noted and no further analysis is required. Letter 3.4: Zone 7, Alameda County Flood Control and Water Conservation District ~' • Comment 3.4.1: The commenter requests that Supplemental Mitigation Measure SM-WATER-2 on page 62 of the DSEIR be modified so that Zone 7 shall also be an approving agency for the drainage and hydrology plan required by the ~ Supplemental Mitigation Measure. Nielsen Development Project Final Supplemental EIR Page 11 City of Dublin April 2010 ~~~~~~ Response: Based on the commenters request, Supplemental Mitigation Measure SM-WATER-2 is hereby modified to read as follows. Also see the Corrections and Modifications section of the FSEIR. "Su~plemental Mitigation Measure SM-WATER-2 (increased stormwater runoffl: Project Developer(s) shall prepare a drainage and hydrology plan using Regional Water Quality Control Board, Zone 7 and City drainage criteria which sha11 indicate that adequate on and off-site capacity exists in local and regional drainage facilities to accommodate the direction, rate and amount of increased stormwater runoff. If necessary, developer(s) shall upgrade undersized drainage facilities to ensure that: a) no on-Site flooding would occur and b) downstream drainage facilities are not overburdened by Project drainage. The drainage and hydrology plan shall be approved by the Dublin Public Works Department and Zone 7 Water Agency. a~ All recomrnendations for drainage improvements shall be incorporated into Proj ect improvement plans." Comment 3.4.2: The commenter notes that under Dublin City Council Resolution No. 53-93, each project area is required to provide a Storm Drainage Master Plan. Please•confirm if the drainage and hydrology plan included as a mitigation measure in the DEIR is the same as the Storm Drain Master Plan that is required by the Eastern Dublin EIR. If not, Zone 7 should have the opportunity to review and comment on the Storm Drainage Master Plan in addition to the drainage and hydrology plan. Response: Proposed stormwater runoff from the Nielsen Project would drain into an existing storm drain within the right-of-way of Tassajara Road, adjacent to the Site. This storm drain was installed in conjunction with the Silvera Ranch project and was designed to accommodate flows from the Nielsen property in a developed condition. The design of this storm drain facility served as a master drainage plan for the Nielsen property and adjoining properties. The Tassajara Road storm drain in turn discharges into Tassajara Creek. Prior capacity studies completed in conjunction with the Dublin Ranch West k development (the Wallis Ranch property) indicated that Tassajara Creek has adequate capacity to accommodate flows from upstream properties in a developed condition. As part of the final improvement plans for the Nielsen Project, a final hydrologic and hydraulic study will need to be completed, confirming adequate capacity in the storm drain system and also confirming that adequate hydromodification measures are in place so that post-construction flows do not exceed pre- construction flows. This is to ensure compliance with the Municipal Regional Permit for Stormwater issued by the San Francisco Bay Regional Water Quality Control Board. These calculations will be provided to Zone 7 should they wish to review them. Nielsen Development Project Final Supplemental EIR Page 12 City of Dublin April 2010 ~ q`~ ~75~ Letter 4.1: Patricia E. Curtin of Morgan, Miller, Blair Comment 4.1.1: The commenter notes that some impacts and mitigation measures from the Eastern Dublin EIR are referenced in the Supplemental DEIR, but it is not clear what mitigation measures from the Eastern Dublin EIR will be required for the proposed Project. The DSEIR must identify all of the mitigation measures that will be required for the proposed Project, which includes mitigation measures from the Eastern Dublin EIR plus supplemental mitigation measures from the SDEIR. All applicable mitigation measures should be identified in the appropriate topic area plus the Summary Table. Without identifying all measures, it is impossible to know if the Project will mitigate these impacts. Also, all of the mitigation measures must be included in the mitigation monitoring plan for the Project. Response: In response to the commenter's request, Appendix 8.4 of the DSEIR lists all of the impacts and mitigation measures included in the 1993 Eastern Dublin EIR. The proposed Project will be required to comply with all of these that are applicable to the proposed Project. In addition, the applicant will be required to comply with Supplemental Mitigation Measures contained in the DSEIR. ~ Regarding the mitigation monitoring program that will be prepared for this Project, it will only contain Supplemental Mitigation Measures, as is standard practice for Supplemental CEQA documents in the City of Dublin. • Comment 4.1.2: The commenter states that the proposed Project is inconsistent with numerous polices of the Eastern Dublin EIR. This is made clear by comments the City subrnitted to Alameda County on a DEIR for the adjacent school project. The commenter has attached these comments as Attachment 1. Specifically, the City commented that the School was inconsistent with several land use and open space policies in the Eastern Dublin Specific Plan. The City noted several inconsistencies with land use, visual and other environmental impacts that would be created. Response: The commenter's opinion with respect to inconsistency of the proposed Project with Eastern Dublin Specific Plans policies and action programs are noted. However, the City of Dublin believes the Nielsen Project design is ~ consistent with alI applicable polices of the Specific Plan. Findings supporting the project and it's consistency with the EDSP policies will be detailed in draft Resolutions and draft Ordinances prepared for the Project and for consideration m~ by the Planning Commission and City Council. Comments regarding consistency of the adjacent School with Specific Plan policies are beyond the scope of this Supplemental EIR and are not addressed in this document. CEQA does not require the City to address comments on a different project than the Project analyzed in the DSEIR. The City also is not _ , required to interpret how comments on a different project may or may not apply Nielsen Development Project Final Suppiemental EIR Page 13 City of Dublin April 2010 ~~ ~~ ~ to the subject Project. Consistent with the requirements of CEQA, the City has responded to all comments about the subject Project contained in the comment letters. Comment 4.1.3: The commenter states her opinion that the proposed Nielsen Project will create more significant impacts than the adjacent School project, as it was originally designed. Even though both sites contain approximately 10 acres of land, the Nielsen Project would have a larger development footprint than the School. Also, the School is located at the bottom of a hill and the proposed Nielsen Project is located at the top of a hill. The School project was significantly redesigned based on City comments. Response: The commenter's comments on the comparative impacts of the School and the proposed Nielsen Project area noted; however, the School project has been built and is not the subject of the Nielsen Project Supplemental EIR. CEQA requires the proposed Project impacts to be measured against existing conditions. There is not requirement under CEQA to compare the level of impacts of the Project with the level of impacts of a different project. Therefore, no further response is required. • Comment 4.1.4: The commenter requests that the City explain how the proposed Project meets or addresses all of the comments the City made on the School in the attached letter as they relate to the proposed Project. These are identified on an attachment. Response: The commenter is directed to the Response to Comments 4.1.2 and 4.1.3. The School is nof the subject of this Supplemental EIR and no additional response is required. • Comment 4.1.5: The commenter notes that the Draft Supplemental EIR is inconsistent with the analysis in the Eastern Dublin EIR. City comments for the adjacent School project on May 25, 2004 concluded that development in the area would result in significant and unavoidable impacts relating to loss of open space, traffic, energy, geology, air quality and noise. Yet the DESEIR does not identify these impacts as unavoidable and fails to discuss the real extent to these impacts. Also, a Statement of Overriding Considerations must be prepared before the proposed Project can be approved. Response: Regarding any comparison of potential environmental impacts between the proposed Nielsen Project and the adjacent School, the commenter is directed to the Response to Comments 4.1.2 and 4.13. The City of Dublin believes the Draft Supplemental EIR accurately assesses any and all supplemental impacts of the proposed Project beyond those impacts identified in the 1993 Eastern Dublin EIR. All significant and unavoidable impacts that were identified in the 1993 Eastern Dublin EIR and are applicable to the Project are incorporated into the analysis in the DSEIR. These significant and unavoidable impacts will be addressed in the CEQA findings for the Project. The DSEIR did identify an additional .significant and unavoidable impact with respect to visual impacts Nielsen Development Project Final Supplemental EIR Page 14 City of Dublin April 2010 ~~6 y1~'" ~ (Supplemental Impact VIS-1). A Statement of Overriding Consideration will be adopted by the Dublin City Council, should the Nielsen Project be approved. Comment 4.1.6: The traffic analysis and trip generation fail to consider the afternoon peak period for the School. The afternoon peak hour would be earlier than studied in the Eastern Dublin EIR. The DSEIR traffic analysis noted that 88% of vehicle traffic will travel on Tassajara Road and the School Driveway is adjacent to the proposed Project on Tassajara Road. Therefore, the DSEIR must include a level of service analysis for the morning and afternoon peak hours for Tassajara Road and the intersections adjacent to the School. Response: This comment is noted. In terms of Project trip generation, Table4.3-2 notes that the Nielsen Project would generate an estimated 27 a.m. peak hour trips and 37 p.m. peak hour lrips at full build out. Assuming that 88% of these trips would travel south on Tassajara Road, as noted in the DSEIR document and conceded by the commenter, there would be an estimated 24 a.m. peak hour trips through the Quarry School Lane access road intersection with Tassajara Road and 33 p.m. peak hour trips. This equates to one vehicle about every two minutes. Since the intersection of Quarry Lane School access road and Tassajara Road is fully signalized, the addition of these few peak hour trips is not anticipated to significantly degrade the level of service at this intersection and this impact would not be significant. Furthermore, during the afternoon peak hour, when Quarry Lane School is dismissed, the project will generate even less traffic than during the peak morning and evening hours and will not significantly impact operations at the intersection. • Comment 4.1.7: The commenter notes that the soils and geology section of the DSEIR is inadequate, since it fails to analyze achxal grading, associated soil .~ impacts and does not include mitigation measures. The analysis is vague that the true nature of the Project cannot be ascertained, specifically at what level the homes would be constructed. The Site is very hilly and rises to 570 feet above sea ,, level. The commenter asks if grading will be balanced on the Site, or will material need to be imported or exported. If off-hauling is a possibility, this impact must be analyzed in terms of number of trucks, routes and similar information. Response: The commenter is incorrect that the DSEIR fails to disclose grading impacts of the proposed Project. First, a generalized discussion of proposed grading activities is included on page 15 of the DSEIR that clearly notes that grading of a portion of the Site is part of the Project. Secondly, Exhibit 3.6 depicts existing and proposed Site grades and finally, Exhibits 4.7-1a through 4.7-2b show the approximate elevations of dwellings on the Site. The Project applicant notes that there would be approximately 50,000 cubic yards of materials off-hauled from the Project site. This would require an estimated 3,300 temporary truck trips over the course of 30-60 days. The Bay Are Air Quality Management District has not adopted standards for temporary construction activity, but the City of Dublin will require compliance with the most stringent dust control measures recommended by Nielsen Development Project Final Supplemental EIR Page 15 City of Dublin April 2010 ~ q 7 ~~ ~ the Bay Area Air Quality Management District to ensure that any impacts from fugitive dust from the Site will be less-than-significant. The Project Developer will also be required to prepare a Construction Traffic and Construction Noise Management Plan that identifies measures to be taken to minimize the impacts of construction traffic and construction noise on surrounding developed properties. The plan shall include hours of construction operation, use of mufflers on construction equipment, speed limit for construction firaffic, haul routes, and identify a noise monitor. These specific traffic and noise management measures shall be included in the Project plans and specifications. As part of the Project, the applicant has commissioned a site-specific geotechnical report to assess soil and geotechnical conditions on the property and the suitability of constructing roads, dwellings, retaining walls and other improvements anticipated as part of the overall Project. That report is entitled "Preliminary Geotechnical Investigation, Nielsen Property, Tassajara Road and Silvera Ranch Road, Dublin, California" and was prepared by Berlogar Geotechnical Consultants, dated July 2007. This report is incorporated by reference into this document and is available for review at the Dublin Community Development Deparhnent during normal business hours. The 2007 report has been supplemented by a later letter report prepared by Berlogar Geotechnical Consultants dated October 25, 2007, which is also incorporated by reference into this FSEIR and is available for review at the Dublin Community Development Departrnent. The October 20071etter report makes additional specific recommendations regarding slope stabilify of the Site as well as including construction recommendations to ensure that no significant grading or slope stability impacts would occur as part of Project construction. Such recommendations include but are not limited to limiting the height of 2:1 slopes to 10 feet high, reinforcement of 2:1 slopes with geogrid and overexcavation of non-competent material and replacement with appropriate fill material. ~ Comment 4.1.8: The commenter states that strict mitigation measures and conditions of approval were applied to the adjacent School to minimize Site grading and preserve hillsides. The commenter requests confirmation that these mitigation measures and conditions will be applied to the proposed Project. Response: The commenter is directed to the Response to Comments 4.1.2 and 4.1.3. The Project is required to comply with applicable Specific Plan policies and mitigation measures to address geological impacts identified in the 1993 Eastern Dublin EIR and DSEIR. • Comment 4.1.9: The Soils and Geology section of the DSEIR fails to describe and analyze the impacts of the required retaining walls. How many walls will be required and where will they be located? The commenter also asks about the height of any retaining walls and if the walls will be landscaped and screened. Finally, what are the visual impacts of these walls? Nielsen Development Project Final Supplemental EIR Page 16 City of Dublin April 2010 ~ ~~ 7~~ ~'y~ Response: The commenter is directed page 15 of the DEIR under the "Grading and Infrastruciure" section that clearly describes that a number of retaining walls ranging in height between 2 and 6 feet would be constructed on the Site. The location of all of the retaining walls will determined based on a final grading plan that is approved by the City of Dublin, as noted in page 18 of the DSEIR in Section 3.b, Future Actions Using this Draft Supplemental EIR. Section 3.6 also clearly noted that the Project applicant will be required to obtain Site Development Review (SDR) approval for aIl design aspects of the Project. This will include landscaping and screening of retaining walls. Comment 4.1.10: The commenter notes that specific mitigation measures identified in the geotechnical investigation would reduce impacts to lateral spreading and liquefaction to a less-than-significant level. These measures were not analyzed or even identified in the DSEIR. Without such an analysis, a conclusion cannot be reached that the measure will mitigate this impact to a less- than-significant level. Response: Neither the 2007 Berlogar Preliminary Geotechnical Report (July 2007) identified in Response to Comment 4.1.7 or supplemental geotechnical analyses prepared by Berlogar Consultants cited in Response to Comment 4.1.7 identify the presence of lateral spreading or liquefaction conditions on the Project Site. Comment 4.1.11: The commenter notes that the School is located immediately below the Project Site and adequate measures must be in place to insure that no impacts will result to the School with respect to grading and soil movement. The School has taken considerable pains to ensure stability of the slopes and confirmation is needed that the Project will not jeopardize the stability of the hillside. Response: The commenter is directed to Section 4.5 of the DSEIR, Soils and Geology that indicates any impacts related to grading and soil movement will be reduced to a less-than-significant level. Also, see the Response to Comment 4.1.10. Comment 4.1.12: The commenter notes that the Project has the potential to impact three special-status species: Western Burrowing Owl, Loggerhead Shrike and White-Tailed Kite. Supplemental Mitigation Measure 2 relating to impacts to bird surveys requires pre-construction surveys to mitigate for impacts to nesting birds. If found, setbacks are to be established and maintained until the young have fledged.. If burrowing owls are found, they shall be passively relocated subject to he authorization of the DFG. This mitigation is inadequate since it delegates the determination and responsibility to other regulatory agencies without the lead agency formulating their own mitigation measure. A condition requiring compliance with the provision of another agency is not adequate mitigation. Nielsen Development Project Final Supplemental EIR Page 17 City of Dublin April 2010 ~~~ ~ ~~p Response: The commenter is incorrect that the DSEIR provides for inadequate mitigation for impacts fo special-status bird species (Supplemental Impact SM-BIO-2). The DSEIR properly notes that development of the proposed Project could impact a number of special-status bird species. Appropriate mitigation is then identified in Supplemental Mitigation Measure SM-BIO-2 that requires, first, a survey to actually determine if special-status species are actually on the Site when development is proposed. If found, a qualified biologist shall establish an appropriate setback from active nests or burrows and maintain until the young have fledged. Burrowing owls shall be passively relocated. A11 of this must occur with the approval of the California Department of Fish and Game, who also exercise jurisdiction over these protected species. Nothing in the wording of SM-BIO-2 defers mitigation to another agency or simply states that compliance with conditions of another agency constitutes full mitigation for this supplemental impact, so this allegation is incorrect. SM-BIO-2 identifies required measures and standards that must be met. • Comment 4.1.13: The commenter notes that the DSEIR fails to identify or consider adequate mitigation for loss of habitat, such as on-site or off-site preservation of similar habitat, or obtaining habitat loss permits from relevant agencies. Although the supplemental mitigation provides for relocation of nesting birds, it does not include mitigation for loss of habitat. Response: With respect to loss of habitat for special-status species, the commenter is directed to Impact 3.7/A in the Eastern Dublin EIR; Direct Habitat Loss. This impact found that implementation of the Eastern Dublin Project will result in the loss, degradation or disturbance of as much as 3,700 acres of vegetation. This includes the Nielsen Project area. Even though the Eastern Dublin EIR included Mitigation Measures 3.7/ 1.0 through 4.0 to partially reduce this impact, the Eastern Dublin EIR found this impact to be significant and unavoidable. Since the Eastern Dublin EIR is incorporated by reference, this impact has been addressed for the Nielsen Project and no further analysis is required. Comment 4.1.14: The commenter notes that mitigation measures contained in the DSEIR improperly defers mitigation for biological impacts. The Endangered Habitats League v. County of Orange and other recent court cases are cited. The success of mitigation efforts may largely depend on any setbacks established and any relocation plans that have not yet been formulated and have not been reviewed in the DSEIR. The fact that future relocation plans would only be prepared after consultation with DFG does not cure basic errors under CEQA. Therefore, biological mitigation measures with respect to loss of special-species habitat is inadequate, since the DSEIR fails to mitigate for loss of habitat. IN addition, the document improperly defers formulation of relocation plans for any special-status species found on the Site. ivieisen ueve~opment Project Final Supplemental EIR Page 18 City of Dublin April 2010 ~~~ ~~~ Response: The commenter is incorrect the Supplemental Mitigation Measures defers mitigation for impacts to biological resources for this Project. Supplemental Mitigation Measure SM-BIO-2 requires establishment of a special setback for burrows and nests and relocation plans, if needed, to be prepared by a qualified biologist and based on that biologist's professional experience. Since the actual location and extent of any special-status bird species will only be determined based on pre-construction surveys, precise details of such setbacks and relocation plans cannot be accurately formulated at this stage of the Project. The commenter is incorrect in the statement that any relocation plans or special setbacks would only be formulated after consultation with DFG. Instead, the intent of the Supplemental Mitigation Measure is to ensure that the measures meet DFG standards and that any state permits will be obtained, if required. Finally, with respect to loss of special-status habitat, see the Response to Comment 4.1.13, where it is noted this impact was fully addressed in the Eastern Dublin EIR. • Comment 4.1.15: The commenter requests another alternative to the proposed Project or a mitigation measure to protect the heritage oak tree. If such an alternative is considered but found infeasible, the mitigation measure must include an on-going maintenance and monitoring requirement to ensure the survival of the oak tree. Response: The Applicant has proposed to remove the Cork Oak tree on the project site due to the fact that this location will have cuts of up to 8 feet for , the future road right of way. The City of Dublin has a process for the removal of heritage trees, which includes the requirement to replace the tree at a 3-to-1 ratio with a minimum 36-inch box size trees. This requirement is being met with the proposed project. Based on the comment, the following change will be made to Supplemental Mitigation Measure SM-BIO-3. "Suvnlemental Mitigation Measure SM-BIO-3 (impacts on Herit~e Tree : The final landscape plan shall show that the existing Heritage Tree, which is proposed to be removed as a part of the residential development, shall be replaced with three 36-inch box size oak trees on the Site. Avvropriate maintenance shaIl be performed by the Project landscane contractor similar to other plantin~s in the Project area MonitorinQ of the three replacement trees' health undertaken b,~a qualified arborist for a one-year period following installation." • Comment 4.1.16: The commenter notes that the proposed Project could impact four special-status plant species. Supplemental mitigation measures require pre- construction surveys and, if species are found, development on the Site should avoid plants or off-site transplantation to an off-site location. The proposed supplemental mitigation contains no specific criteria or standard of performance. Nielsen Development Project Final Supplemental EIR Page 19 City of Dubiin April 2010 -~~- ~ --~~~ Any relocation plans have not yet been formulated and have not been subject to analysis and review within the DSEIR. The fact that future relocation plans would be prepared under the direction of regulatory agencies does not cure basic errors under CEQA, since no adequate criteria or standards are established. The supplemental mitigation measure should establish performance criteria and an on-going maintenance and monitoring plan to ensure viability of the special- status species. Response: The commenter is incorrect that Supplemental Mitigation Measure SM-BIO-1 does not specifically require standards or criteria. The primary criteria mandated in the supplemental mitigation measure is avoidance of development of areas of the Site occupied by special-status piants. Only if avoidance is not feasible would relocation plans be required. Any such plans, if required, would be developed by a qualified biologist to ensure success of the Plan. At the request of the commenter, the following modification is made to Supplemental Mitigation Measure SM-BIO-1 to require on-going monitoring. "Supplemental Miti~ation Measure SM-BIO-1 (irnpacts to special-status plant species): Pre-construction surveys shall be completed for the four special-status plant species during each plant's bloomin~ season: big scale balsamroot, big tarplant, Congdon's tarplant, and showy madia consistent with CDFG protocols. If such species are found, the Project development plan shall be modified to avoid the locations of such plant(s). If avoidance is not feasible, plants shall be transplanted (or seed collected and relocated) to a suitable on- or off-site location pursuant to necessary permits from the California Department of Fish and Game and/or other regulatory agencies. T 1 . 1 1 • 1 • ~ ~ • • _ • w • ~ ~ ~. years to ensure that transplantations are established." Comment 4.1.17: The commenter notes that the DSEIR finds that significant and unavoidable impacts would result with respect to visual resources, including adverse impacts on scenic vistas and corridors, minimal; preservation of hillside areas and limited view corridors. Despite the fact that the Project is located in a Visually Sensitive Ridgeland-Restricted Development area, proposed development would encompass virtually the entire Site, leaving only one natural open space area. The development plan shows that a substantial amount of the Site would be developed with urban uses, such as dwellings, roads and similar uses. A visuai resource analysis included in the DSEIR shows that a substantial portion of the hillside would be visible from Tassajara Road and minimal views would remain of the existing natural hillside, including 101ots in a Visually Sensitive Ridgeland area. Other grading would occur within a visually sensitive area as well. The DSEIR is fundamentally flawed in that it determines that no supplemental mitigation measures are available to mitigate identified impacts. An attempt must be made to identify mitigation measures, including a reduction in the number of dwellings. Nielsen Development Project Finai Supplemental EIR Page 20 City of Dublin April 2010 ~~~ ~ ~~~ Response: The commenter's opinion is noted. The City of Dublin believes that the wording of the DSEIR is legally adequate to meet CEQA requirements. No feasible mitigation measures were found to reduce visual impacts to a less-than-significant level. The commenter has not proposed any feasible mitigation measure. The commenter's suggestion regarding the reduction of the number of dwellings is a project alternative, not a mitigation measure. Comment 4.1.18: The DSEIR only includes a no project alternative, a townhouse alternative and an alternative with development at the base of the knoll. The alternatives failed to analyze a reduction of the number of units by reducing dwellings in the most sensitive ridgelands area. By reducing the Project to ten units (Lots 23-33), the Project would avoid the Visually Sensitive Ridgelands and preserve the appearance of the visually sensitive area, thereby mitigating the visual impact in a manner more consistent with the goals and policies of the Eastern Dublin Specific Plan. Elimination of then lots would allow development of twenty-four lots. At minimum, CEQA requires analysis of all mitigation measures, which can then be rejected as infeasible if warranted. Response: The commenter's opinion is noted, however the suggestion that Lots 23 through 33 be eliminated would actually eliminate eleven, not ten lots. With a reduction of eleven lots, only twenty-three lots would remain. CEQA Guidelines Section 15126.6 "a" states that "An EIR shall describe a range of alternatives to the project, or the location of the Project, that would feasibly obtain most of the basic objectives of the Project but would avoid or substantially lessen any of the significant of the project..." Further, the same subsection notes that "an EIR need not consider every conceivable alternative to a project." Based on this guideline, the City of Dublin believes that the DSEIR provides a sufficient number of project alternatives that depict differing development scenarios on the Site that would achieve the project objectives listed on page 17 of the DSEIR and potentially lessen the visual impacts of the proposed Project. Prior to approving the Project, the City Council will need to make findings, supported by substantial evidence, on the infeasibility of mitigation measures and alternatives which could reduce the ~ significant and unavoidable impacts. ~ Comment 4.1.19: The commenter notes that when a mitigation measure or _ alternative is found infeasible on economic grounds, that determination must be supported by substantial economic evidence in the record. A court case cited by - the commenter found that a records for previous projects did not include an analysis of comparative costs, profits or economic benefits of a scaled down project alternative was insufficient to support a finding of infeasibility. The City must make the determination on financial feasibility based on substantial evidence in the record. The DSEIR only makes a conclusory statement that no feasible mitigation measures because such measure will render the Project economically feasible due to the cost o£ the infrastructure. This simple statement is not adequate evidence to support a finding of infeasibility. Further, mitigation measures were not considered which lessen the impact on the most visually Nielsen Development Project Final Supplemental EIR Page 21 City of Dublin April 2010 7~~~'7~~ ~ sensitive ridgelands, such s removing 10 dwellings and analyzing the feasibility of developing 24 units. Response: See Response to Comment 4.1.18. Comment 4.1.20: The commenter notes that impacts of the Project are inconsistent with the Eastern Dublin EIR, which allows only lower spur ridges to be developed within the visually sensitive ridgelands-restricted development, if a development meets certain requirements. These resfrictions include that a development will not obscure or silhouette against the horizon when viewed from a city or county designed scenic route, and that grading for such development does not visually scar sensitive ridgelands or hillsides. The proposed Project also violates a number of goals and policies of the Specific Plan. In order to approve the Project, the Specific Plan policies must be amended. Response: As noted on page 82 of the DSEIR, the City of Dublin believes that on an overall basis, the proposed Project is consistent with Eastern Dublin EIR mitigation measures and policies of the Eastern Dublin Specific Plan to allow development on Visually Sensitive Ridgelands-Restricted Development. These measures include incorporation of stepped building pads, increased setbacks to allow views of the hills beyond, minimizing grading and appropriately recontouring the Site to rnatch surrounding landforms. Findings supporting the project and it's consistency with the EDSP policies will be detailed in the draft Resolutions and draft Ordinances prepared for the project and for consideration by the City Council. Comment 4.1.21: The commenter states that visual impacts previously identified in the Eastern Dublin EIR were reduced to a less-than-significant level by implementation of Eastern Dublin Specific Plan policies. However, the commenter notes that the proposed Project does not comply with those implementing policies and impacts identified in the Eastern Dublin EIR have not been reduced to a level of insignificance. Specifically, Impact 3.8/E states that structures builfi in proximity to ridges may obscure or fragment the profile of visually sensitive ridgelines. Mitigation Measures 3.8/4.0 through 4.5 are included in the Eastern Dublin EIR to reduce this impact to a level of insignificance. Those mitigation measures require that no development is allowed on main ridgeline and require that development on foreground hills must maintain a backdrop of natural ridgelines and minimize obstruction of natural views. Since the proposed Project fails to comply with those mikigation measures, impacts identified in the Eastern Dublin EIR have not been mitigated to a level of insignificance. Although the stated purpose of the detailed visual analysis is able to adjust the project design to minimize visual impacts, the Project has not been redesigned to minimize the significant visual impacts and inconsistencies with the Specific Plan. Response: The commenter is directed to the Response to Comment 4.1.20. This Response concludes that the proposed Project is consistent with the Eastern Dublin Specific Plan and Eastern Dublin EIR. Nielsen Development Project Final Supplemental EIR Page 22 City of Dublin April 2010 7~4~~~p ~5~ 1 Comment 4.1.22: The visual analysis does not mention the Specific Plan community guideline to minimize grading on slopes over 30% and to minimize visual impacts along Tassajara Road. This was an issue raised on the School and the School was required to implement an extensive and costly mitigation measures to ensure this guideline was met. This guideline must be considered in the DSEIR. Response: The comment is noted. The City of Dublin believes that the proposed Project does meet the guidelines referenced by the commenter. The applicant and his designer worked closely with the City to minimize site grading, as identified on page 82 of the DSEIR and to provide extensive landscaping along the Project's Tassajara Road frontage. This landscaping is depicted on Exhibit 3.5. Consistency of the existing School south of the Project Site with City guidelines is not part of the Project EIR and no response is required. See Responses to Comments 4.1.2 and 4.1.3. Comment 4.1.23: The commenter requests that the proposed Project be redesigned to be consistent with the requirements of Mitigation Measure 3.8/4.5 and goals and polices of the Specific Plan to remove all units from the main ridgeline that would remove 10 dwellings that are within the visually sensitive ridgelands and that impair scenic views that appear to extend above the scenic backdrop when viewed from Tassajara Road, a designed scenic route. Response: The commenter's opinion is noted and will be considered by the Dublin Planning Commission and City Council during public hearings - regarding the Project and the associated Supplemental EIR. • Comment 4.1.24: The commenter notes that the DSEIR identifies an increase in light and glare on adjacent properties and roads as a significant impact. The DSEIR fails to adequately review this impact and the supplemental mitigation measure improperly defers review of light fixtures. The supplemental mitigation measure does not include any performance measures or provide for approval of light fixtures or the timing of such light fixtures. Without identifying the level of reduced light spill over that should be met, it is impossible to determine if the proposed mitigation measures reduce the impact to a level of insignificance. This type of mitigation has been repeatedly stuck down by courts with citations provided by the commenter. Similar to mitigation measures rejected down by the courts, there are no identified criteria for the design of light fixtures or any performance measures to measure the light and glare on adjacent properties. The mitigation rneasure does no more than identify the light fixtures on the plans without seiting any standard to be met. Response: The commenter's allegation that Supplemental Mitigation Measure SM-VIS-2 is inadequate because it does not establish a performance standard for light and glare and defers mitigation is incorrect. The wording of the Nielsen Development Project Final Supplemental EIR Page 23 City of Dublin April 2010 ~ns~~ ~~~' supplernental mitigation measure clearly establishes a performance standard that no light or glare from the Project Site shall spill over onto adjacent sites and compliance with this standard will be confirmed in approval of final building plans. Therefore, this impact will be reduced to a less-than- significant level and mitigation has not been deferred. Comment 4.1.25: The commenter states that page 81 of the DSEIR contains two inconsistent statements. One statement notes that the proposed Project does not contain any view corridors to knolis and foreground hills. A second sentence on the same page notes that the proposed Project would contain a limited view corridor to knolls and foreground hills. This would include at the Project entrance at the intersection of Silvera Ranch Road and Tassajara Road. These statements should be clarified and the inconsistency remedied. Response: In response to this comment, the first sentence on page 81 of the DSEIR (" The proposed Project, as reconfigured, does not contain any view corridors to knolls and foreground hills") is incorrect, since the proposed Project would provide limited view corridors to knolls and foreground hills. Therefore, the first sentence on Page 81 dealing with view corridors is eliminated and no inconsistency remains. See the Corrections and Modifications section of this document. Comment 4.1.26: The commenter states that the proposed Project should be reconfigured to comply with Mitigation Measures 3.6/22.0 through 26.0 and should not exceed 3:1 slopes or exceed the 500 foot elevation mark. Mr. Nielsen previously objected to the School based on these objections and the School was required to revise its project to locate playfields below the 500 ft. elevation mark, restrict grading below the 520-foot elevation mark and not exceed 3:1 slopes. The same constraints placed on the school as demanded by Mr. Nielsen must be applied to his own development. The visual resources should be protected to the same extent as has been required for all other properties. Response: The commenter's opinion with respect to grading and slope gradients are noted. The proposed Project would comply with Eastern Dublin EIR Mitigation Measure 3.6/ 22.0, which does limit unretained cut slopes to a gradient of 3:1 unless a detailed, site-specific geotechnical report is prepared that indicate steeper inclinations can be provided that are safe and/or that retaining walls can be provided. Mitigation Measure 3.6 / 23.0 requires fill slopes steeper than 5:1 be keyed and benches into competent material and provided with subdrainage. Mitigation Measure 3.6/24.0 limits unreinforced fill slopes to a gradient of 2:1 and provided with benches and surface drainage, as determined by appropriate code requirements and site-specific geotechnical studies. Steeper fill sloes (up to 1:1) may be achieved if appropriately reinforced. The proposed Project would comply with all of these Eastern Dublin EIR mitigation measures, since the applicant has submitted a site-specific geotechnical report (see Response to Comment 4.1.7) indicating that greater Nielsen Development Project Final Supplemental EIR Page 24 City of Dublin April 2010 ~ n~ ~~~ ~ than 3:1 slopes can be created if appropriately engineered and constructed per recommendations contained in the geotechnical report. The commenter is incorrect in her assertion that there is a City requirement or Eastern Dublin EIR mitigation measure limiting grading to below an elevation of 500 feet above sea level. The commenter's opinion that the Project should be required to conform to earlier comments made by the Project applicant on the adjacent school is noted. See Responses to Comments 4.1.2 and 4.1.3. • Comment 4.1.27: The commenter notes that the DSEIR identifies and analyzes impacts from the School, the DSEIR fails to analyze and identify potential construction noise from the Project to the School. The commenter requests that an acoustical study be done to analyze construction noise. The City cannot legally conclude that the Project would not have significant effects on the School without knowing the results of the acoustic study and noise impacts on the School during school hours should be identified and specific mitigations identified. The EDEIR Mitigation Measure requiring preparation of a Construction Noise Management Plan, yet specific measures are not yet known and there is no assurance they will be imposed on the Project. In order to comply with CEQA, the Mitigation Measure must be identified in the DSEIR and the items listed in the Project acoustic report incorporated into a mitigation measure. One of the measures the Project Acoustic Report requires is a construction site noise coordinator to be available to respond to neighbor complaints. This measure is vague and fails to identify appropriate measures to reduce noise levels to acceptable levels during school hours. The commenter cites a 2005 court decision that struck down a similar mitigation measure for construction noise. In this case, the court found the mitigation measure was inadequate since it did not include criteria or alternatives were set out. The mitigation measure for the Nielsen Project does no more than require a report to be prepared and followed or allow approval by a County department without setting any standards. Response: The commenter's incorrectly cites Eastern Dublin "Mitigation Measure 3.10/E" as the construction noise mitigation measure. Instead, the Eastern Dublin EIR provides for two measures to mitigate consfiruction noise. Mitigation Measure 3.10/4.0 requires all developers in the Eastern Dublin Planning area (including the Project) to prepare a Construction Noise Management Plan to minimize impacts on existing planning area residents. Each program is to include a schedule for grading and other noise-generating activities to limit the number of days to the shortest possible number of days. Hours of operations would be limited. Site access for construction vehicles should minimize traffic through residential areas. Berms, barriers and other restrictions on hours should be in place. Nielsen Development Project Final Supplemental EIR Page 25 City of Dublin April 2010 ~707 ~ ~5~ Eastern Dublin EIR Mitigation Measure 3.10/5.0 requires compliance of construction activities with local noise standards. Construction nears residential areas should be limited to normal daytime hours. Stationary equipment should be adequately muffled and located as far away as possible from sensitive noise receptors. A noted by the commenter, page 118 of the DSEIR also includes three additional items to be included in the Construction Noise Management Plan. As noted on Page 54 of the Project Initial Study (see Appendix 1 of the DSEIR), the Project is required to comply with all of the noise mitigation measures contained in the Eastern Dublin EIR. The commenter is also incorrect that the Eastern Dublin EIR Mitigation Measures do not contain specific standards to reduce noise to acceptable Ievels. Mitigation Measure 3.10/5.0 established a clear measurable standard to which future construction noise must comply. Mitigation Measure 3.1/5.0 requires construction operations to comply with "local noise standards." This has been defined to mean noise standards established in the City of Dublin Noise Element, which are included on Page 115 of the DSEIR. The Construction Noise Management Plan must then include a number of specific items to achieve this standard, including the three additional items found on Page 118 of the DSEIR. Therefore, the City of Dublin believes the DSEIR accurately analyzes and mitigated construction noise impacts. Comment 4.1.28: The commenter states that the DSEIR improperly rejects the alternative with a lower density due to financial infeasibility of a project with fewer units. While economic feasibility can be a basis for concluding that an alternative is infeasible, the Public Resource Code requires that a finding of infeasibility be based on substantial evidence in the record. The applicant has the burden of demonstrating that the alternative project would be financially infeasible. There is no evidence in the record regarding the economic viability of the project with fewer units and therefore the DSEIR improperly concludes that the alternatives are infeasible. Response: See Response to Comment 4.1.18. • Comment 4.1.29: The alternatives are incomplete in that it needs to consider alternatives that are capable of reducing the visual impacts. The alternatives consider an extremely density but do not consider slighdy reducing density to minimize impacts to the most visually sensitive areas. At rninimum, the - alternatives should consider and analyze removing ten lots proposed to be located in the most visually sensitive area on the Site. Nielsen Development Project Fina~ Supplemental EIR Page 26 City of Dublin April 2010 ~7~' ~ `75g Response: This comment is noted. The commenter is directed to the Response to Comment 4.1.18. Based on this earlier Response, the City of Dublin believes that the DSEIR adequately describes and analyzes feasible alternatives to the proposed Project. Comment 4.1.30: The commenter urges the City to analyze the proposed Project with the same criteria as it has done with other projects in the past, Iike the School. The City must require the proposed Project to adhere to the same requirements and rules as previously approved projects. Furthermore, the DSEIR must be revised to be consistent with the analysis and requirement that were contained in other envirorunental documents for projects in the same area. The commenter also urges the City to revise the DSEIR with the information requested in this comment letter and, because this additional analysis will be new significant information as defined in CEQA. The revised DSEIR will need to be recirculated for further review and comment. The commenter's opinions regarding the adequacy of the DSEIR re noted; however, the City of Dublin believes the DSEIR is fully consistent with CEQA and CEQA Guidelines with respect to identification of significant supplemental impacts, provides supplemental mitigation rneasures and adequately analyzes a range of alternatives to the Project. Also, as stated in the Introduction of the Final SEIR, the standards for recirculation of the DSEIR are not met. Nielsen Development Project Final Supplemental EIR Page 27 City of Dublin April 2010 Nielsen Project Supplemental EIR Mitigation Monitoring and Reporting Program PA #07-057 April 2010 Mitigation Measure SM-WATER 1 P Implementing Res onsibility Monitoring Responsibilit Monitoring Schedule Verification - . roject Developer(s) shall prepare a Stormwater Pollution Prevention Plan (SWPPP) Project Developers Dublin Public Works Prior to issuance of a grading that incorporates Best Management Practices Departrnent and permit (BMPs) for construction and post-construction Building Division conditions. The SWPPP shall be prepared to Regional Water Quality Control Board standards and Alameda County Clean Water Program requirements. The SWPPP shall be prepared prior to issuance of a demolition permit by the City of Dublin to avoid spill over of material into Tassajara Creek and other bodies of water during demolition. The BMPs may include, but not limited to, incorporation of grassy swales into landscaped areas, use of filtration devices and similar features. SM-WATER: Project Developer(s) shall prepare a Project Dublin Public Included in drainage and hydrology plan using Regional Developers Works Project Water Quality Control Board, Zone 7 and City Department improvement drainage criteria which shall indicate that plans adequate on and off-site capacity exists in local and regional drainage facilities to accommodate the direction, rate and amount of increased stormwater runoff. If necessary, developer(s) shall u ade undersized draina e facilities to ~ 0 ~ ~ ~ Oc~~ Mitigation Measure Implementing Monitoring Monitoring Verification Responsibility Responsibility Schedule ensure that: a) no on-Site flooding would occur and b) downstream drainage facilities are not overburdened by Project drainage. The drainage and hydrology plan shall be approved by the Dublin Public Works Department and Zone 7 Water Agency. All recommendations for drainage improvements shall be incorporated ~ into Project improvement plans. SM-BIO-1 P t : re-cons ruction surveys shall be Project Dublin Planning Prior to issuance completed for the four special-status plant species Developers Division of a grading during each plant's blooming season: big scale permit balsamroot, big tarplant, Congdori s tarplant, and showy madia consistent with CDFG protocols. If such species are found, the Project development plan shall be modified to avoid the locations of such plant(s). If avoidance is not feasible, plants shall be transplanted (or seed collected and relocated) to a suitable on- or off-site location pursuant to necessary permits from the California Department of Fish and Game and/or other regulatory agencies. Relocation plans shall include on-going monitoring for a period of five years to ensure that transplantations are established. SM-BIO-2 P t i . re-cons ruct on surveys shall be Project Dublin Planning Prior to issuance completed to prevent impacts to nesting Developers Division of a grading Burrowing Owl, White-tailed Kite, and/or permit Nieisen uevelopment Project Mitigation Monitoring and Reporting Program Ciry of Dublin Page 2 J a .~ ~ ~ Mitigation Measure Implementing Monitoring Monitoring Verification Responsibility Responsibility Schedule Loggerhead Shrike. If active nests or occupied burrows are found, setbacks from a burrow/nest site shall be established by a qualified biologist and maintained until the young have fledged. If burrowing owls are detected outside of the nesting season they shall be passively relocated outside of any development area subject to the authorization of the Department of Fish and Game. SM-BIO-3: The final landscape plan shall show Project Dublin Planning Shown on final that the existing Heritage Tree, which is proposed Developers Division landscape plan in to be removed as a part of the residential Site Development development, shall be replaced with three 36-inch Review box size oak irees on the Site. Appropriate application. maintenance shall be performed by the Project landscape contractor, similar to other plantings in the Project area. Monitoring of the three replacement trees' health, undertaken by a qualified arborist for a one-year period following installation." SM-VIS-2. Light fixtures installed as part of the Project Dublin Planning As part of Site Project shall be equipped with cut-off lenses and Developers Division Development directed downward to avoid spill over of lights Review onto adjacent properties or roadways. The design application(s) of light fixtures shall be specified on final building and improvement plans. i~ieisen ueveiopment Project Mitigation Monitoring and Reporting Program City of Dublin Page 3 `~ W Mitigation Measure Implementing Monitoring Monitoring Verification Responsibility Responsibility Schedule 5M-AlK-1. lt the requested land use Project Dublin Planning Following entitlements are approved, the City of Dublin Developers Division approval of Stage shall transmit appropriate documentation of 1& Stage 2 land use buildout. In addition, the following Planned steps shall be taken by the Project Applicant: • The project proponent shall ne otiat ith Development rezonin and g e w g LAVTA for the construction or reservation of improvements land for transit facilities such as bus shown in Site turnouts/bus bulbs, benches, and related Development public transit facilities. Review • Provide on site bicycle land and/or paths, application. connected to community-wide network. • Provide on site sidewalks and/or paths, connected to adjacent land uses, transit stops, and/or community-wide network. • Allow only natural gas fireplaces and heating stoves. No wood burning devices shall be allowed. • Require dwellings to have outdoor electrical outlets to encourage the use of electric lawn and garden equipment for landscaping and maintenance. • Install ENERGY-STAR appliances. SM_AQ_2 In additi t . on o measures identified in Project Dublin Public Prior to approval MM 3.11 / 1.0 of the Eastern Dublin EIR, the City Developers Works of grading plan of Dublin shall: Department a) Require construction contractors to water or cover stock iles of debris, soil, sand or other Nielsen Development Project Mitigation Monitoring and Reporting Program Ciry of Dublin Page 4 ~ ~J ~ ~ ~ ~ Mitigation Measure Implementing Monitoring Monitoring Verification Responsibility Responsibility Schedule materials that can be blown by the wind. b) ~ Require construction contractors to sweep daily (preferably with water sweepers) all paved access road, parking areas and staging areas at construction sites. c) Require construction contractors to install sandbags or other erosion control measures to prevent silt runoff to public roadways. d) On-site idling of construction equipment and trucks shall be inininlized as much as feasible (no more than five minutes maximum). e) All construction equipment shall be properly tuned and fitted with manufacturer's standard level exhaust controls. SM-NOISE-1. The following features shall be Project Dublin Building Included in final incorporated into final building plans: Developers Division and building plans a) For Lots 1 through 3, a minimum 6-foot-tall Planning Division property line noise barrier shall be installed to acoustically shield future Tassajara Road traffic noise. Noise barriers could include either a masonry sound wall or an acoustical wood fence. b) For any upper floor balconies for homes constructed on Lots 1 through 9 that would face west, 3-1/2-foot-tall, solid railing shall be installed to acoustically shield Tassajara Road noise to seated receivers. ivieisen ueveiopment Nro~ect Mitigation Monitoring and Reporting Program City of Dublin ~ ~ "'~..b Page 5 ~ ~ ~ ~ ~ ~ , ~ ~ ~ ~ . ~. ~ ~ , Mitigation Measure Implementing Monitorin g Monitoring Verification Responsibility Responsibility Schedule c~ upper rioor windows facing Tassajara Road shall be sound-rated and non-operable to ensure that interior noise standards are met. SM-HAZ-1. The followin a ti h l g c ons s a l be taken before issuance of the first demolition permit, if l i l Project Developers Dublin Building Division Prior to first demolition ermit mu t p e permits are issued by the City: p a) Asbestos containing material shall be tested for, and if found, removed by a licensed contractor and disposed of in a landfill licensed to accept this level of contaminated material. If required, a permit shall be obtained from the Bay Area Air Quality Management District prior to commencement of work. b) Testing and analysis for lead based paints and PCBs shall be conducted. If such materials are found, remediation shall be completed by a licensed contractor. Necessary permits shall be obtained prior to commencement of work. Nielsen Development Project Mitigation Monitoring and Reporting Program City of Dublin .~ ~ ~ Page 6 _ ~~ ~ ~