Orange City Council
April 11, 2023

April 11, 2023
City Council Meeting
Written Public Comments
General Public
Comment
Jennifer Connally
From: Janice Brownfield
Sent: Monday, April 10, 2023 7:20 PM
To: City Council Public Comment
Subject: Public Comment Non-Agenda Item
You are encouraged to apply for grants from numerous sources to help us reduce greenhouse gas emissions to provide us with a healthier and sustainable future. One example is grants from the California Natural Resources Agency can help protect and preserve Santiago Creek. On November 21 the agency contributed $308,700.00 to the Discovery Cube Science Center to complete conceptual design to restore native habitat, establish new creekside trails and build educational amenities along the Santiago Creek in Santa Ana at the entrance to Santiago Park, which is next to Hart Park in Orange.

Every April 22nd for more than 50 years since 1970, Earth Day highlights our need to protect the environment for a sustainable future. In all of your decisions you are encouraged to consider the environment and where possible switch to renewable energy, which not only provides us with cleaner air but is also cheaper than petroleum, natural gas and coal. You are also encouraged to adopt a Climate Action and Adaptation Plan, for which professors and students from Chapman University and UC Irvine have offered their assistance.

While planting more trees throughout the city is helpful to the environment, preserving older trees is more effective in combating climate change since we have only about seven years to prevent the tipping point at which next to nothing will help reduce its devastating effects.

Older trees, especially those with more than 50 years of growth, capture much more carbon dioxide than new trees.

Another way to protect our environment is to reduce methane gas emissions from landfills by providing all residents and businesses with organic waste recycling bins, as required by Senate Bill 1383, effective January 1 of last year. About one-third of the City's residents live in multi- family dwellings and even though SB 1383 requires units of five or more to also be provided with such bins, it does not appear to have yet happened. While waiting for the State-mandated bins, residents can take their food scraps to local community gardens. There is also a pick-up service offered through OrangeCompost.com that for $25 a month will provide three-gallon sealable bins, collect them every two weeks and take them to the gardens. 1 Item 6.3
Delegate Authority to
City Manager for
Non-Substantive
Edits to 2021-2029
Housing Element
Jennifer Connally
From: Keith Diggs
Sent: Monday, April 10, 2023 10:27 AM
To: [email protected]; City Council Public Comment Cc: [email protected]; Housing Elements
Subject: City of Orange - amendments for compliance are necessarily "substantial" Hello,
The City of Orange is the latest to consider unlawfully delegating its legislative body's authority to adopt and amend general-plan elements in order to achieve HCD certification of its housing element.

Please be advised that YIMBY Law considers this practice unlawful. Chapter 3, article 6 of the Planning & Zoning Law (Gov. Code §§ 65350 et seq.) requires formal procedures for any "substantial" modification of a general-plan element. As HCD certifications are intended to review for substantial compliance (id. § 65585), any changes needed to obtain certification cannot be authorized other than by a properly noticed and conducted vote of the appropriate legislative body.

The City Attorney and staff are not that legislative body.

We are sympathetic that the housing-element review process is lengthy, and that the substantive requirements of the housing-element law are too ornate for human cognition. We understand the impulse to streamline the process. But that streamlining can only be done by the Legislature. Until such time, please refrain from amending a general-plan element in an illegal manner.

Best,
Keith Diggs O
Attorney
YIMBY
LAW

MATTHEW GELFAND, COUNSEL

CALIFORNIANS FOR

HOMEOWNERSHIP
April 11, 2023
City Council
City of Orange
300 E Chapman Ave.

Orange, CA 92866
Email: [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]
RE: April 11, 2023 City Council Meeting, Agenda Item 6.3 To the City Council:

Californians for Homeownership is a 501(c)(3) non-profit organization devoted to using impact litigation to address California's housing crisis. Our organization is monitoring local compliance with the laws governing housing elements.

At tonight's meeting, the City Council will consider adopting a resolution giving City staff the purported authority to amend the City's adopted housing element without holding a public hearing or engaging in any other form of review by the City Council. This is unlawful.

Government Code Section 65355 requires the City to hold a public hearing when it amends its housing element. The plan will also prove fruitless; no amount of "non-substantive" changes can bring a City's housing element into substantial compliance with state law.

If the City goes down this road, litigation is nearly certain to result. We urge you not to delegate to staff this important public function that is properly reserved for you alone.

Sincerely,
Matthew Gelfand
CC: City of Orange
Mary Binning, Esq., Interim City Attorney (by email to [email protected]) 525 S. Virgil Avenue
Los Angeles, CA 90020
Item 9.1
Street Lights Mixed
Use Apartment
Development
LOZEAU DRURYuP 510.836.4200 1939 Harrison Street, Ste. 150 www.lozeaudrury.com F 510.836.4205 Oakland, CA 94612 [email protected]
April 10, 2023
Via E-mail
Dan Slater, Mayor Monique Schwartz, Associate Planner
Arianna Barrios, Mayor Pro Tem Community Development Department Jon Dumitru, Councilmember City of Orange
Kathy Tavoularis, Councilmember 300 E. Chapman Avenue
Denis Bilodeau, Councilmember
Ana Gutierrez, Councilmember Orange, CA 92866
John Gyllenhammer, Councilmember [email protected] City Council
City of Orange Pamela Coleman, City Clerk
300 E. Chapman Avenue City of Orange
Orange, CA 92866 300 E. Chapman Avenue
[email protected] Orange, CA 92866
[email protected]
Re: Appeal of Resolution No. PC 33-22, Planning Commission Recommendation for Approval of the IS/MND for 840 The City Drive Apartments; Orange City Council, Meeting of April 11, 2023, Agenda Item No. 9.1
Dear Mayor Slater and Honorable Members of the City Council:

I am writing on behalf of Supporters Alliance for Environmental Responsibility ("SAFER") regarding the Initial Study and Mitigated Negative Declaration ("MND") prepared for the 840 The City Drive Apartments Project ("Project"), for Applicant SLR Orange Development, LLC (hereinafter the "Applicant"), including all actions related or referring to the demolition of an existing retail building and proposed construction of a new 225-unit mixed-use apartment development, open parking structure for the adjacent office complex use, related site improvements, and a reduction of 48 parking spaces and 670 square feet of open space, located at 840 The City Drive South.

This letter supplements and adopts in its entirety SAFER's prior written comments submitted to the Orange Planning Commission on February 22, 2023 (SAFER's prior comments, as well as the comments and CVs of its independent experts, are attached as Exhibit A) SAFER's experts have responded to the March 20, 2023 Response to Comments prepared by FirstCarbon Solutions ("Response to Comments"). The rebuttal comments of Baseline Environmental Consulting ("Baseline") and certified industrial hygienist Francis "Bud" Offermann, PE, CIH are attached as Exhibit B and Exhibit C, respectively.

Comments to the Orange City Council
Appeal of Resolution No. PC 33-22
April 10, 2023

SAFER respectfully requests that you grant its Appeal and overturn the Planning Commission's approval of the Project and the MND. SAFER has reviewed the MND, with the assistance of Baseline and Mr. Offermann, and concluded that there is a "fair argument" that the Project may have unmitigated adverse environmental impacts. Therefore, CEQA requires that the City of Orange ("City") prepare an environmental impact report ("EIR") for the Project, pursuant to the California Environmental Quality Act ("CEQA"), Public Resources Code section 21000, et seq. SAFER respectfully requests that you do not adopt the MND and instead direct staff to undertake the necessary efforts to prepare an EIR prior to issuing any approvals, as required by CEQA.

LEGAL STANDARD
As the California Supreme Court has held, "lilf no EIR has been prepared for a nonexempt project, but substantial evidence in the record supports a fair argument that the project may result in significant adverse impacts, the proper remedy is to order preparation of an EIR." (Communities for a Better Env't v. South Coast Air Quality Mgmt. Dist. (2010) 48 Cal.4th 310, 319-320 (CBE v. SCAQMD) (citing No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 75, 88; Brentwood Assn. for No Drilling, Inc. v. City of Los Angeles (1982) 134 Cal.App.3d 491, 504-505).) "Significant environmental effect" is defined very broadly as "a substantial or potentially substantial adverse change in the environment." (Pub. Res. Code ("PRC"') § 21068; see also 14 CCR § 15382.) An effect on the environment need not be "momentous" to meet the CEQA test for significance; it is enough that the impacts are "not trivial." (No Oil, Inc., 13 Cal.3d at 83.) "The "foremost principle' in interpreting CEQA is that the Legislature intended the act to be read so as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language." (Communities for a Better Env't v. Cal. Res.

Agency (2002) 103 Cal.App.4th 98, 109 (CBE v. CRA).)
The EIR is the very heart of CEQA. (Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1214 (Bakersfield Citizens); Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, 927.) The EIR is an environmental 'alarm bell' whose purpose is to alert the public and its responsible officials to environmental changes before they have reached the ecological points of no return." (Bakersfield Citizens, 124 Cal.App.4th at 1220.) The EIR also functions as a "document of accountability," intended to "demonstrate to an apprehensive citizenry that the agency has, in fact, analyzed and considered the ecological implications of its action." (Laurel Heights Improvements Assn. v. Regents of Univ. of Cal. (1988) 47 Cal.3d 376, 392.) The EIR process "protects not only the environment but also informed self-government." (Pocket Protectors, 124 Cal.App.4th at 927.) An EIR is required if "there is substantial evidence, in light of the whole record before the lead agency, that the project may have a significant effect on the environment." (PRC § 21080(d); see also Pocket Protectors, 124 Cal.App.4th at 927.) In very limited circumstances, an agency may avoid preparing an EIR by issuing a negative declaration, a written statement briefly indicating that a project will have no significant impact thus requiring no EIR (14 CCR § 15371), only if there is not even a "fair argument" that the project will have a significant Comments to the Orange City Council
Appeal of Resolution No. PC 33-22
April 10, 2023

environmental effect. (PRC $§ 21100, 21064) Since "It]he adoption of a negative declaration. .. has a terminal effect on the environmental review process," by allowing the agency "to dispense with the duty [to prepare an EIR]," negative declarations are allowed only in cases where "the proposed project will not affect the environment at all." (Citizens of Lake Murray v.

San Diego (1989) 129 Cal.App.3d 436, 440.)
Under the "fair argument" standard, an EIR is required if any substantial evidence in the record indicates that a project may have an adverse environmental effect-even if contrary evidence exists to support the agency's decision. (14 CCR § 15064(f)(1); Pocket Protectors, 124 Cal.App.4th at 931; Stanislaus Audubon Society v. County of Stanislaus (1995) 33 Cal.App.4th 144, 150-51; Quail Botanical Gardens Found., Inc. v. City of Encinitas (1994) 29 Cal.App.4th 1597, 1602) The "fair argument" standard creates a "low threshold" favoring environmental review through an EIR rather than through issuance of negative declarations or notices of exemption from CEQA. (Pocket Protectors, 124 Cal.App.4th at 928.) The "fair argument" standard is virtually the opposite of the typical deferential standard accorded to agencies. As a leading CEQA treatise explains:

This 'fair argument' standard is very different from the standard normally followed by public agencies in their decision making. Ordinarily, public agencies weigh the evidence in the record and reach a decision based on a preponderance of the evidence. [Citation]. The fair argument standard, by contrast, prevents the lead agency from weighing competing evidence to determine who has a better argument concerning the likelihood or extent of a potential environmental impact. (Kostka & Zishcke, Practice Under the California Environmental Quality Act, §6.37 (2d ed. Cal.

CEB 2021).) The Courts have explained that "it is a question of law, not fact, whether a fair argument exists, and the courts owe no deference to the lead agency's determination. Review is de novo, with a preference for resolving doubts in favor of environmental review." (Pocket Protectors, 124 Cal.App.4th at 928 (emphasis in original).)

DISCUSSION
I. The Response to Comments Fails to Adequately Address the Project's Significant Air Quality and Hazardous Materials Impacts.

Environmental engineers Patrick Sutton, PE, Cem Abatek, and Yilin Tian, Ph.D. of Baseline Environmental Consulting ("Baseline") reviewed the MND and related documents for the Project. Baseline found that there is substantial evidence of a fair argument that the Project will have significant air quality and hazardous materials impacts. Baseline has responded in detail to the Response to Comments and concludes that it fails to adequately address SAFER's concerns regarding the Project's significant environmental impacts.

Comments to the Orange City Council
Appeal of Resolution No. PC 33-22
April 10, 2023

A. Air Quality
The MND did not include a construction health risk assessment (HRA") to evaluate the health impact of diesel particulate matter ("DPM") emissions. The Response to Comments indicates that a construction HRA was not required because the Project would not exceed South Coast Air Quality Management District ("SCAQMD") Localized Significance Thresholds ("LSTs") for construction-generated criteria pollutants. However, as Baseline explains, LST only evaluates impacts from criteria air pollutants, which does not include DPM. (Ex. B., p. 1.) This is improper because CEQA requires an analysis to determine whether a Project's toxic air contaminant ("TAC") emissions-including DPM emissions —will have potentially adverse impacts on human health. Sierra Club v. Cty. of Fresno (2018) 6 Cal. 5th 502, 518 (an EIR must make "a reasonable effort to substantively connect a project's air quality impacts to likely health consequences.") The failure to address potential health-related impacts resulting from the Project's air emissions is problematic because operation of construction equipment during construction, as well as truck trips during future operations, will release DPM emissions into the air, affecting air quality and residents' health.

The Response to Comments incorrectly asserts that the health risks associated with DPM emissions are due to long term exposure and are not from acute exposure. This is false-DPM is a known human carcinogen which may cause adverse health effects with even limited amounts of exposure. In fact, the Office of Environmental Health Hazard Assessment ("ОЕННА"), the California state agency which provides guidance for health risk assessments, advises that "a higher exposure to a carcinogen, over a short period of time may be a greater risk than the same total exposure spread over a much longer time period." (Ex. B., p. 2.) Next, the Response to Comments incorrectly suggests that OEHHA guidance does not apply to short-term construction projects. This statement mischaracterizes the guidance. ОЕНА recommends the preparation of an HRA for all projects lasting longer than two months. (Id.) The MND estimates that Project construction will last approximately one and a half years, which is substantially more than two months. (Id.) Furthermore, the MND provides no mitigation measures to limit the use of diesel off-road construction equipment outside of the Project's initial demolition phase. This is despite the fact that building construction - which will involve the use of diesel-powered equipment - is estimated to last for approximately 261 work days, or approximately nine months. (Id., p. 3.)
In light of these considerations, "a health risk assessment should be conducted to calculate the incremental increase in cancer risk for sensitive receptors (e.g., single-family homes south of the southern project site boundary) that would be exposed to DPM emissions during project construction in accordance with the OEHHA guidance." (Id.) Because the MND has failed to adequately address the Project's significant air quality impacts, the MND's conclusion is not supported by substantial evidence. Baseline's comments constitute substantial evidence that the Project may have a significant impact on human health that has not been analyzed or mitigated and an EIR is required prior to Project approval.

Comments to the Orange City Council
Appeal of Resolution No. PC 33-22
April 10, 2023

B. Hazardous Materials
The Response to Comments fails to adequately address SAFER's concerns regarding the Project's significant hazardous materials impacts. According to the MND, a dry-cleaning business, Cecilia's Cleaners, was located at the residential portion of the Project site from at least 1989 until 2012. A release of tetrachloroethene ("PCE") from the dry-cleaning service has affected soil and soil gas at the project site.

The Response to Comments fails to acknowledge that additional environmental investigation activities were performed at the Project site in 2022 and fails to respond to SAFER's prior comments stating that these investigations were not disclosed in the MND. (Id., pp. 4-5.) In fact, the Department of Toxic Substances Control ("DTS") Envirostor Database! shows that a supplemental groundwater investigation was performed at the project site in August 2022 and that additional soil gas sampling was performed at the project site in September 2022. (Id., p. 5.) The results of these recent investigations must be disclosed to inform the public of the Project's potential hazardous materials impacț.

Next, the Response to Comments asserts, without evidence, that the groundwater testing indicated that the site's groundwater is clean for residential construction. However, groundwater testing results were not disclosed in the MND. (Id.) Furthermore, the 2019 Phase I Environmental Assessment ("ESA") prepared for the mixed-use portion of the project site indicates that groundwater beneath the project site is relatively shallow and had not yet been assessed. The Phase I ESA also recommends additional soil gas and groundwater testing at the project site. (Id.) However, the MND does not disclose the findings or recommendations of the Phase I ESA. (Id.) An EIR is required to properly analyze and mitigate these significant impacts.

The Response to Comments suggests that the Project's current "remediation plan" is adequate to ensure the health of the Project's future occupants. However, the MND does not describe any remediation plans for the project site. (Id.) As such, Baseline observes: "Although the Draft IS/MND indicates that PCE contamination poses no significant risk of vapor intrusion, it is relying on the findings of an indoor air quality assessment for the existing building on the project site, and a new building on the project site could have very different vapor intrusion potential depending on the building design and operation. For example, a new building could have utility trenches and utility penetrations that can create preferential pathways for vapor intrusion, and a new building would have different ventilation systems that would have different air exchange rates." (Id.)
The Response to Comments suggests that implementation of mitigation measure HAZ-1 would address potential impacts related to subsurface contamination revealed during project construction. However, this mitigation measure merely requires biweekly visits to the project site by a hazardous materials specialist. This is clearly inadequate. As Baseline explains, "Disturbance of PCE contaminated soil releases vapors that can affect construction workers and ' https://www.envirostor.dtsc.ca.gov/public/profile report.asp?global_id-60002574 Comments to the Orange City Council
Appeal of Resolution No. PC 33-22
April 10, 2023

the surrounding public and PCE contaminated soil could be spread to new areas if not managed appropriately. At a minimum, a Soil Management Plan should be required for the project to ensure that contractors abide by proper protocols for management of contaminated soil at all times, and not just when a specialist visits the project site once every two weeks." (Id., p. 6.) Finally, the Response to Comments improperly suggests that further mitigation is not required because the Applicant has been working voluntarily with DTSC for several years to remediate the site. However, the Voluntary Agreement is voluntary - it can be terminated by the Applicant at any time. Instead, to ensure that future residents, workers, and patrons are not exposed to substantial concentrations of hazardous chemicals from vapor intrusion, an enforceable mitigation measure must be adopted to require that the Applicant obtain a final No Further Action determination from DTSC prior to the issuance of building permits. (Id.) An EIR must be prepared to properly analyze this significant impact and to provide appropriate mitigation.

II. The Response to Comments Fails to Adequately Address the Project's Significant Adverse Indoor Air Quality and Health Impacts.

Certified Industrial Hygienist, Francis "Bud" Offermann, PE, CIH, reviewed the MND and all relevant documents regarding the Project's indoor air emissions. Based on this review, Mr. Offermann concluded that the Project will likely expose future residents living at the Project to significant impacts related to indoor air quality, and in particular, emissions of the cancer- causing chemical formaldehyde. Mr. Offermann is a leading expert on indoor air quality and has published extensively on the topic. Mr. Offermann has responded in detail to the Response to Comments and concludes that it fails to adequately address SAFER's concerns regarding the Project's significant indoor air quality impacts.

The Response to Comments incorrectly asserts that the health risks associated with indoor formaldehyde emissions need not be addressed during the CEQA review process. This assertion is directly contrary to the California Supreme Court's decision in California Building Industry Ass'n v. Bay Area Air Quality Mgmt. Dist. (2015) 62 Cal.4th 369, 386 ("CBIA"). In that case, the Supreme Court held that potentially adverse impacts to future users and residents resulting from a Project's environmental impacts must be addressed by the CEQA review process. The issue before the Court in CBIA was whether an air district could enact CEQA guidelines that advised lead agencies that they must analyze the impacts of existing environmental conditions that occurred near a project site.

The Supreme Court held that CEQA does not generally require lead agencies to consider the environment's effects on a project (CBIA, 62 Cal.4th at 385-88). However, it ruled that agencies must still consider the extent to which a project may exacerbate existing environmental conditions at or near a project site, insofar as those conditions may adversely affect the project's future users or residents. (Id. at 388.) Specifically, the Supreme Court wrote, CEQA's statutory language requires lead agencies to disclose and analyze "impacts on a project's users or residents that arise from the project's effects on the environment." (Id. at 387 Comments to the Orange City Council
Appeal of Resolution No. PC 33-22
April 10, 2023

[emph. added].)
The Supreme Court's reasoning in CBIA is well-grounded in CEQA's statutory language.

CEQA expressly identifies a project's effects on human beings as an effect that must be addressed as part of an environmental review. "Section 21083(b)(3)'s express language, for example, requires a finding of a 'significant effect on the environment' (§ 21083(b)) whenever the 'environmental effects of a project will cause substantial adverse effects on human beings, either directly or indirectly.'" (CBIA, 62 Cal.4th at 386.) Likewise, "the Legislature has made clear—in declarations accompanying CEQA's enactment-that public health and safety are of great importance in the statutory scheme." (Id. [citing e.g., §§ 21000, subds. (b), (c), (d), (g), 21001, subds. (b), (d)].) It goes without saying that future employees of the Project are human beings. It is therefore axiomatic that any threat to the health and safety of those workers resulting from the Project's impact on the environment is subject to protection under CEQA.

The carcinogenic formaldehyde emissions which Mr. Offermann identified are not an existing environmental condition. To the contrary, those emissions will be caused by the Project and will result in adverse effects on the environment. Furthermore, as Mr. Offermann notes, the Project site has an existing outdoor cancer risk of 446 per million, "and thus the cancer risk from exposure to formaldehyde emitted indoors from composite wood products would further exacerbate the pre-existing cancer risk of the building occupants, which result from exposure to carcinogens in both indoor and outdoor air." (Ex. C., p. 2, emph. added.) Next, the Response to Comments states that Mr. Offermann "presupposes that formaldehyde-containing composite wood products will be used in building materials as part of the project, particularly for all interior finish systems," and that "The project proponent has not commissioned (and does not intent [sic] to commission) the use of formaldehyde-containing composite wood products in project building materials." (Id.) The Response to Comments also states that Mr. Offermann's comments are inapplicable because the Project will comply with California regulations regarding the manufacture and sale of composite wood products. These assertions are incorrect and do not invalidate Mr. Offermann's findings.

First, Mr. Offermann's calculations regarding indoor formaldehyde emissions assumed compliance with the California Air Resources Board ("CARB"') formaldehyde airborne toxics control measure ("ATCM"). Even accounting for this assumption, Mr. Offermann found that future residents of the proposed Project would be exposed to a cancer risk of 120 per million.

This risk level is 12 times greater than the South Coast Air Quality Management District ("SCAQMD"") CEQA significance threshold for airborne cancer risk of 10 per million. This is a significant impact which must be addressed and mitigated by an EIR.

Next, Mr. Offermann explains that, for the Project to avoid exposing future residents to indoor emissions of formaldehyde, the Project would need to "either only use [no-added- formaldehyde] composite wood products, or select composite wood products with formaldehyde emission rates that result in indoor cancer risks no greater than 10 per million." (Id.) Importantly, Mr. Offermann observes, "Even composite wood products manufactured with CARB certified ultra-low emitting formaldehyde (ULEF) resins do not insure that the indoor air will have Comments to the Orange City Council
Appeal of Resolution No. PC 33-22
April 10, 2023

concentrations of formaldehyde the meet the [CEQA] cancer risks that substantially exceed 10 per million." (Id., p. 6.) Instead, "Only use of composite wood products made with no-added formaldehyde resins (NAF), such as resins made from soy, polyvinyl acetate, or methylene diisocyanate can insure that the [CEQA] cancer risk of 10 per million is met." (Id.) The Applicant's statement that it does not "intend" to use formaldehyde-containing composite woods products in Project building materials does not provide adequate assurance that this significant impact will be avoided. CEQA requires mitigation measures to be legally enforceable through permit conditions, agreements, or other legally binding instruments. 14 CCR § 15126.4(a)(2). See, Woodward Park Homeowners Assn., Inc. v. City of Fresno (2007) 150 Cal.

App. 4th 683, 730 (project proponent's agreement to a mitigation by itself is insufficient; mitigation measure must be an enforceable requirement). The City could require enforceable mitigation measures that would restrict its ability to use composite wood products containing formaldehyde in Project construction. However, because it has failed to do so, this remains a significant unmitigated impact which must be analyzed and mitigated by an EIR.

CONCLUSION
Based on the foregoing, the MND for the Project must be withdrawn, and an EIR must be prepared and circulated for public review and comment.

Sincerely,
Adam Frankel
Lozeau Drury LLP
P: (626) 314-3821 139 South Hudson Avenue
F: (626) 389-5414 Mitchell M. Tsai Suite 200
E: [email protected] Attorney At Law Pasadena, California 91101

VIA E-MAIL
April 10, 2023
Monique Swartz,
Associate Planner
City of Orange
300 E. Chapman Avenue
Orange, CA 92866
Em: [email protected]
RE: City of Orange's 840 The City Drive IS/MND Comment Letter Dear Monique Swartz,
On behalf of the Southwest Mountain States Regional Council of Carpenters ("Southwest Carpenters" or "SWMSRCC"), my Office is submitting these comments for the City of Orange's (the "City") City Council meeting for the 840 The City Drive project (the "Project").

The Southwest Carpenters is a labor union representing over 57,000 union carpenters in six states, including California, and has a strong interest in well-ordered land use planning and in addressing the environmental impacts of development projects.

Individual members of the Southwest Carpenters live, work, and recreate in the City and surrounding communities and would be directly affected by the Project's environmental impacts.

The Southwest Carpenters expressly reserves the right to supplement these comments at or prior to hearings on the Project, and at any later hearing and proceeding related to this Project. California Government Code ("Gov. Code") S 65009, subd. (b); Public Resources Code ("Pub. Res. Code") S 21177, subd. (a); see Bakersfield Citizens for Local Control v. Bakersfield (2004) 124 Cal.App.4th 1184, 1199-1203; see also Galante Vineyards v. Monterey Water Dist. (1997) 60 Cal.App.4th 1109, 1121.

The Southwest Carpenters incorporates by reference all comments raising issues regarding the IS/MND (the "IS/MND") submitted prior to certification of the EIR for the Project. See Citizens for Clean Energy v City of Woodland (2014) 225 Cal.App.4th City of Orange - 840 The City Drive Project
April 10, 2023

173, 191 (finding that any party who has objected to the project's environmental documentation may assert any issue timely raised by other parties).

Moreover, the Southwest Carpenters requests that the City provide notice for any and all notices referring or related to the Project issued under the California Environmental Quality Act ("CEQA") (Pub. Res. Code, § 21000 et seg.), and the California Planning and Zoning Law ("Planning and Zoning Law") (Gov. Code, IS 65000-65010). Pub. Res. Codes IS 21092.2, and 21167(f) and Gov't Code § 65092 require agencies to mail such notices to any person who has filed a written request for them with the clerk of the agency's governing body.

I. THE CITY SHOULD REQUIRE THE USE OF A LOCAL

WORKFORCE TO BENEFIT THE COMMUNITY'S ECONOMIC

DEVELOPMENT AND ENVIRONMENT
The City should require the Project to be built using a local workers who have graduated from a Joint Labor-Management Apprenticeship Program approved by the State of California, have at least as many hours of on-the-job experience in the applicable craft which would be required to graduate from such a state-approved apprenticeship training program, or who are registered apprentices in a state-approved apprenticeship training program.

Community benefits such as local hire can also be helpful to reduce environmental impacts and improve the positive economic impact of the Project. Local hire provisions requiring that a certain percentage of workers reside within 10 miles or less of the Project site can reduce the length of vendor trips, reduce greenhouse gas emissions, and provide localized economic benefits. As environmental consultants Matt Hagemann and Paul E. Rosenfeld note:
[AJny local hire requirement that results in a decreased worker trip length from the default value has the potential to result in a reduction of construction-related GHG emissions, though the significance of the reduction would vary based on the location and urbanization level of the project site.

March 8, 2021 SWAPE Letter to Mitchell M. Tsai re Local Hire Requirements and Considerations for Greenhouse Gas Modeling.

Workforce requirements promote the development of skilled trades that yield sustainable economic development. As the California Workforce Development Board City of Orange - 840 The City Drive Project
April 10, 2023

and the University of California, Berkeley Center for Labor Research and Education concluded:
[Labor should be considered an investment rather than a cost-and investments in growing, diversifying, and upskilling California's workforce can positively affect returns on climate mitigation efforts. In other words, well-trained workers are key to delivering emissions reductions and moving California closer to its climate targets.' Furthermore, workforce policies have significant environmental benefits given that they improve an area's jobs-housing balance, decreasing the amount and length of job commutes and the associated greenhouse gas ("GHG") emissions. In fact, on May 7, 2021, the South Coast Air Quality Management District found that that the "[u]se of a local state-certified apprenticeship program" can result in air pollutant reductions.? Recently, the State of California verified its commitment towards workforce development through the Affordable Housing and High Road Jobs Act of 2022, otherwise known as Assembly Bill No. 2011 ("AB2011"). AB2011 amended the Planning and Zoning Law to
Locating jobs closer to residential areas can have significant environmental benefits.

As the California Planning Roundtable noted in 2008:

People who live and work in the same jurisdiction would be more likely to take transit, walk, or bicycle to work than residents of less balanced communities and their vehicle trips would be shorter. Benefits would include potential reductions in both vehicle miles traveled and vehicle hours traveled. 3
California Workforce Development Board (2020) Putting California on the High Road: A Jobs and Climate Action Plan for 2030 at p. ii, available at https://laborcenter.berkeley.edu/ wp-content/uploads/2020/09/Putting-California-on-the-High-Road.pdf. 2 South Coast Air Quality Management District (May 7, 2021) Certify Final Environmental Assessment and Adopt Proposed Rule 2305 - Warehouse Indirect Source Rule - Warehouse Actions and Investments to Reduce Emissions Program, and Proposed Rule 316 - Fees for Rule 2305, Submit Rule 2305 for Inclusion Into the SIP, and Approve Supporting Budget Actions, available at http://www.aqmd.gov/docs/default- source/Agendas/ Governing-Board/ 2021/2021-May7-027.pdf?sfvrsn=10. 3 California Planning Roundtable (2008) Deconstructing Jobs-Housing Balance at p. 6, available at https://cproundtable.org/static/media/uploads/publications/cpr-jobs- housing pdf
City of Orange - 840 The City Drive Project
April 10, 2023

Moreover, local hire mandates and skill-training are critical facets of a strategy to reduce vehicle miles traveled (VMT). As planning experts Robert Cervero and Michael Duncan have noted, simply placing jobs near housing stock is insufficient to achieve VMT reductions given that the skill requirements of available local jobs must match those held by local residents.* Some municipalities have even tied local hire and other workforce policies to local development permits to address transportation issues. Cervero and Duncan note that:

In nearly built-out Berkeley, CA, the approach to balancing jobs and housing is to create local jobs rather than to develop new housing. The city's First Source program encourages businesses to hire local residents, especially for entry- and intermediate-level jobs, and sponsors vocational training to ensure residents are employment-ready. While the program is voluntary, some 300 businesses have used it to date, placing more than 3,000 city residents in local jobs since it was launched in 1986. When needed, these carrots are matched by sticks, since the city is not shy about negotiating corporate participation in First Source as a condition of approval for development permits.

Therefore, the City should consider utilizing local workforce policies and requirements to benefit the local area economically and to mitigate greenhouse gas, improve air quality, and reduce transportation impacts.

Il. THE CITY SHOULD IMPOSE TRAINING REQUIREMENTS FOR

THE PROJECT'S CONSTRUCTION ACTIVITIES TO PREVENT
COMMUNITY SPREAD OF COVID-19 AND OTHER INFECTIOUS

DISEASES
Construction work has been defined as a Lower to High-risk activity for COVID-19 spread by the Occupations Safety and Health Administration. Recently, several construction sites have been identified as sources of community spread of COVID-

19.5 *Cervero, Robert and Duncan, Michael (2006) Which Reduces Vehicle Travel More: Jobs- Housing Balance or Retail-Housing Mixing? Journal of the American Planning Association 72 (4), 475-490, 482, available at http://reconnectingamerica.org/assets/Uploads/UTCT- 825. pdf.
5 Santa Clara County Public Health (June 12, 2020) COVID-19 CASES AT

CONSTRUCTION SITES HIGHLIGHT NEED FOR CONTINUED VIGILANCE IN City of Orange - 840 The City Drive Project
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Southwest Carpenters recommend that the Lead Agency adopt additional requirements to mitigate public health risks from the Project's construction activities. Southwest Carpenters requests that the Lead Agency require safe on-site construction work practices as well as training and certification for any construction workers on the Project Site.

In particular, based upon Southwest Carpenters' experience with safe construction site work practices, Southwest Carpenters recommends that the Lead Agency require that while construction activities are being conducted at the Project Site:

Construction Site Design:
• The Project Site will be limited to two controlled entry points.
• Entry points will have temperature screening technicians taking temperature readings when the entry point is open. • The Temperature Screening Site Plan shows details
regarding access to the Project Site and Project Site logistics for conducting temperature screening.
• A 48-hour advance notice will be provided to all trades prior to the first day of temperature screening.

The perimeter fence directly adjacent to the entry points will be clearly marked indicating the appropriate 6-foot social distancing position for when you approach the
screening area. Please reference the Apex temperature
screening site map for additional details.

There will be clear signage posted at the project site
directing you through temperature screening.

Provide hand washing stations throughout the construction site.

SECTORS THAT HAVE REOPENED, available at https:// www.sccgov.org/sites/ covid19/Pages/press-release-06-12-2020-cases-at-construction-sites.aspx.

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Testing Procedures:

The temperature screening being used are non-contact
devices.

Temperature readings will not be recorded
• Personnel will be screened upon entering the testing center and should only take 1-2 seconds per individual.
• Hard hats, head coverings, sweat, dirt, sunscreen of any other cosmetics must be removed on the forehead before
temperature screening.

Anyone who refuses to submit to a temperature screening or does not answer the health screening questions will be refused access to the Project Site.

Screening will be performed at both entrances from 5:30 am to 7:30 am.; main gate [ZONE 1] and personnel gate
[ZONE 2]
After 7:30 am only the main gate entrance [ZONE 1] will continue to be used for temperature testing for anybody gaining entry to the project site such as returning
personnel, deliveries, and visitors.

If the digital thermometer displays a temperature reading above 100.0 degrees Fahrenheit, a second reading will be taken to verify an accurate reading.
• If the second reading confirms an elevated temperature, DHS will instruct the individual that he/she will not be allowed to enter the Project Site. DHS will also instruct the individual to promptly notify his/her supervisor and
his/her human resources (HR) representative and provide them with a copy of Annex A.

Planning
• Require the development of an Infectious Disease
Preparedness and Response Plan that will include basic
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infection prevention measures requiring the use of
personal protection equipment), policies and procedures for prompt identification and isolation of sick individuals, social distancing (prohibiting gatherings of no more than 10 people including all-hands meetings and all-hands
lunches) communication and training and workplace
controls that meet standards that may be promulgated by the Center for Disease Control, Occupational Safety and Health Administration, Cal/OSHA, California Department
of Public Health or applicable local public health agencies.' The United Brotherhood of Carpenters and Carpenters International Training Fund has developed COVID-19 Training and Certification to ensure that Carpenter union members and apprentices conduct safe work practices. The Agency should require that all construction workers undergo COVID-19 Training and Certification before being allowed to conduct construction activities at the Project Site.

Southwest Carpenters has also developed a rigorous Infection Control Risk Assessment ("ICRA") training program to ensure it delivers a workforce that understands how to identify and control infection risks by implementing protocols to protect themselves and all others during renovation and construction projects in healthcare environments.?
ICRA protocols are intended to contain pathogens, control airflow, and protect patients during the construction, maintenance and renovation of healthcare facilities.

ICRA protocols prevent cross contamination, minimizing the risk of secondary infections in patients at hospital facilities.

The City should require the Project to be built using a workforce trained in ICRA protocols.
" See also The Center for Construction Research and Training, North America's Building Trades Unions (April 27 2020) NABTU and CPWR COVIC-19 Standards for U.S Constructions Sites, available at https:// www.cpwr.com/sites/default/files/NABTU CPWR Standards COVID-19.pdf; Los Angeles County Department of Public Works (2020) Guidelines for Construction Sites During COVID-19 Pandemic, available at https://dpw.lacounty.gov/building-and-safety/docs/pw guidelines-construction-sites.pdf. " For details concerning Southwest Carpenters' ICRA training program, see https://icrahealthcare.com/
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III. THE PROJECT WOULD BE APPROVED IN VIOLATION OF THE

CALIFORNIA ENVIRONMENTAL QUALITY ACT
A. Background Concerning the California Environmental Quality Act CEQA has two basic purposes. First, CEQA is designed to inform decision makers and the public about the potențial, significant environmental effects of a project. 14 California Code of Regulations ("CCR" or "CEQA Guidelines") $ 15002(a) (1). "Its purpose is to inform the public and its responsible officials of the environmental consequences of their decisions before they are made. Thus, the EIR "protects not only the environment but also informed self-government.? [Citation.]" Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal. 3d 553, 564. The EIR has been described as "an environmental 'alarm bell' whose purpose it is to alert the public and its responsible officials to environmental changes before they have reached ecological points of no return." Berkeley Keep Jets Over the Bay v. Bd. of Port Comm'rs. (2001) 91 Cal.

App. 4th 1344, 1354 ("Berkeley Jets"); County of Inyo v. Yorty (1973) 32 Cal. App. 3d 795, 810.

Second, CEQA directs public agencies to avoid or reduce environmental damage when possible by requiring alternatives or mitigation measures. CEQA Guidelines S 15002(a) (2) and (3). See also, Berkeley Jets, 91 Cal. App. 4th 1344, 1354; Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553; Laurel Heights Improvement Ass'n v.

Regents of the University of California (1988) 47 Cal.3d 376, 400. The EIR serves to provide public agencies and the public in general with information about the effect that a proposed project is likely to have on the environment and to "identify ways that environmental damage can be avoided or significantly reduced." CEQA Guidelines S 15002(a) (2). If the project has a significant effect on the environment, the agency may approve the project only upon finding that it has "eliminated or substantially lessened all significant effects on the environment where feasible" and that any unavoidable significant effects on the environment are "acceptable due to overriding concerns" specified in CEQA section 21081. CEQA Guidelines S 15092(b)(2)(A-B).

B. The City Should Prepare an EIR for the Project
A strong presumption in favor of requiring preparation of an EIR is built into CEQA.

This presumption is reflected in what is known as the "fair argument" standard, under which an agency must prepare an EIR whenever substantial evidence in the record supports a fair argument that a project may have a significant effect on the City of Orange - 840 The City Drive Project
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environment. Quail Botanical Gardens Found., Inc. v City of Encinitas (1994) 29 CA4th 1597, 1602; Friends of "B" St. v City of Hayward (1980) 106 Cal.App. 3d 988; 1002.

The fair argument test stems from the statutory mandate that an EIR be prepared for any project that "may have a significant effect on the environment." Pub Res C §21151; No Oil, Inc. v City of Los Angeles (1974) 13 C3d 68, 75; Jensen v City of Santa Rosa (2018) 23 CA5th 877, 884. Under this test, if a proposed project is not exempt and may cause a significant effect on the environment, the lead agency must prepare an EIR.

Pub Res C SS21100(a), 21151; 14 Cal Code Regs $15064(a) (1), (f)(1). An EIR may be dispensed with only if the lead agency finds no substantial evidence in the initial study or elsewhere in the record that the project may have a significant effect on the environment. Parker Shattuck. Neighbors v Berkeley City Council (2013) 222 CA4th 768, 785. In such a situation, the agency must adopt a negative declaration. Pub Res C $21080(c)(1); 14 Cal Code Regs SS15063(b) (2), 15064(f) (3). "Significant effect upon the environment" is defined as "a substantial or potentially substantial adverse change in the environment." Pub Res C §21068; 14 Cal Code Regs $15382. See $13.2. A project "may" have a significant effect on the environment if there is a "reasonable probability" that it will result in a significant impact. No Oil, Inc. u City of Los Angeles, 13 C3d at 83 n16; Sundstrom v County of Mendocino (1988) 202 CA3d 296, 309. If any aspect of the project may result in a significant impact on the environment, an EIR must be prepared even if the overall effect of the project is beneficial. 14 Cal Code Regs $15063(b)(1). See County Sanitation Dist. No. 2 v County of Kern (2005) 127 CA4th 1544, 1580.

This standard sets a "low threshold" for preparation of an EIR. Consolidated Irrig. Dist. v City of Selma (2012) 204 CA4th 187, 207; Nelson v County of Kern (2010) 190 CA4th 252; Pocket Protectors v City of Sacramento (2004) 124 CA4th 903, 928; Bowman v City of Berkeley (2004) 122 CA4th 572, 580; Citizen Action to Serve All Students v Thornley (1990) 222 CA3d 748, 754; Sundstrom v County of Mendocino (1988) 202 CA3d 296, 310. If substantial evidence in the record supports a fair argument that the project may have a significant environmental effect, the lead agency must prepare an EIR even if other substantial evidence before it indicates the project will have no significant effect. See Jensen v City of Santa Rosa (2018) 23 CA5th 877, 886; Clews Land e" Livestock v City of San Diego (2017) 19 CA5th 161, 183; Stanislaus Audubon Sory, Inc. v County of Stanislaus (1995) 33 CA4th 144, 150; Brentwood Ass'n for No Drilling, Inc. v City of Los Angeles (1982) 134 CA3d 491; City of Orange - 840 The City Drive Project
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Friends of "B" St. v City of Hayward (1980) 106 CA3d 988. See also 14 Cal Code Regs $15064(f) (1).

As explained in full below, there is a fair argument that the Project will have a significant effect on the environment. As a result, the "low threshold" for preparation of an EIR has been met and the City must prepare an EIR.

CEQA Requires Revision and Recirculation of a Mitigated Negative Declaration When Substantial Changes or New Information Comes to Light
Once a negative declaration has been circulated, it may need to be recirculated for another round of review and comment if it is "substantially revised" after the public notice of the first circulation period has been given. CEQA Guidelines S 15073.5(a).

A substantial revision includes two situations (14 Cal Code Regs §15073.5(b)):
• A new, avoidable significant effect is identified, and to reduce that effect to a level of insignificance, mitigation measures or project revisions must be added.

The lead agency finds that the mitigation measures or project revisions originally included in the negative declaration will not reduce potentially significant impacts to a level of insignificance, and new mitigation measures or project revisions are required New information will require recirculation when it amounts to a substantial revision of the negative declaration, which is defined to mean the identification of new significant environmental impacts or the addition of new mitigation that is required to avoid a significant environmental impact. CEQA Guidelines §15073.5(b). If the new information reveals a new significant impact that cannot be mitigated or avoided, then the lead agency must prepare an EIR before approving the project.

CEQA Guidelines §15073.5(d).

Revisions to a project to mitigate potentially significant environmental effects must be included in the negative declaration that is circulated for public review. Pub Res C $21080(c)(2); 14 Cal Code Regs SS15070(b), 15071(e).

Based on the arguments set forth below, in the alternative, Commenter requests that the City recirculate the IS/MND upon making any revisions.

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D. The IS/MND Improperly Labels a Mitigation Measure as a "Project Design Feature."
The IS/MND improperly labels mitigation measures for "Project Design Features" or "PDFs" which the IS/MND purports to "reduc[e] impacts to water quality, along with the implementation of MM GEO-1 and the project-specific construction BMPs shown in the SWPPP erosion and sediment control plans and grading plans would reduce potentially significant construction impacts to less than significant with mitigation incorporated." (IS/MND p. 118). will reduce the potential for environmental effects.

Relying on the PDFs, the IS/MND concludes in many instances that the Project's impacts are less than significant and that no mitigation is required.

However, it is established that "[a]voidance, minimization and / or mitigation measure'... are not "part of the project.? ...compressing the analysis of impacts and mitigation measures into a single issue .. disregards the requirements of CEQA." Lotus v. Department of Transportation (2014) 223 Cal. App.4th 645, 656.

When "an agency decides to incorporate mitigation measures into its significance determination, and relies on those mitigation measures to determine that no significant effects will occur, that agency must treat those measures as though there were adopted following a finding of significance." Lotus, supra, 223 Cal.App.4th at 652 [citing CEQA Guidelines § 15091(a) (1) and PRC S 21081(a) (1).

By labeling mitigation measures as project design features, the City violates CEQA by failing to disclose "the analytic route that the agency took from the evidence to its findings." PRC $ 21081.5; CEQA Guidelines § 15093; Village Laguna of Laguna Beach, Inc. v. Board of Supervisors (1982) 134 Cal.App.3d 1022, 1035 (citing Topanga Assn for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 515).

The IS/MND's use of "Project Design Features" further violates CEQA because such measures would not be included in the Project's Mitigation Monitoring and Reporting Program CEQA requires lead agencies to adopt mitigation measures that are fully enforceable and to adopt a monitoring and/or reporting program to ensure that the measures are implemented to reduce the Project's significant environmental effects to the extent feasible. PRC $ 21081.6; CCR § 15091(d). Therefore, using Project Design Features in lieu of mitigation measures violates CEQA.

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E. The IS/MND Fails to Support Its Findings with Substantial Evidence When new information is brought to light showing that an impact previously discussed in the IS/MND but found to be insignificant with or without mitigation in the IS/MND's analysis has the potential for a significant environmental impact supported by substantial evidence, the IS/MND must consider and resolve the conflict in the evidence. (See Visalia Retail, L.P. v. City of Visalia (2018) 20 Cal. App. 5th 1, 13, 17; see also Protect the Historic Amador Waterways v. Amador Water Agency (2004) 116 Cal. App. 4th 1099, 1109.) While a lead agency has discretion to formulate standards for determining significance and the need for mitigation measures —the choice of any standards or thresholds of significance must be "based to the extent possible on scientific and factual data and an exercise of reasoned judgment based on substantial evidence. (CEQA Guidelines S 15064(b); Cleveland Nat'I Forest Found. v. San Diego Ass'n of Gov'ts (2017) 3 Cal. App. 5th 497, 515; Mission Bay Alliance v. Office of Community Inv. @ Infrastructure (2016) 6 Cal. App. 5th 160, 206.) And when there is evidence that an impact could be significant, an EIR cannot adopt a contrary finding without providing an adequate explanation along with supporting evidence. (East Sacramento Partnership for a Livable City v. City of Sacramento (2016) 5 Cal. App. 5th 281, 302.) In addition, a determination that regulatory compliance will be sufficient to prevent significant adverse impacts must be based on a project-specific analysis of potential impacts and the effect of regulatory compliance. In Californians for Alternatives to Toxics v.

Department of Food er Agric. (2005) 136 Cal. App.4th 1, the court set aside an EIR for a statewide crop disease control plan because it did not include an evaluation of the risks to the environment and human health from the proposed program but simply presumed that no adverse impacts would occur from use of pesticides in accordance with the registration and labeling program of the California Department of Pesticide Regulation. See also Ebbetts Pass Forest Watch v Department of Forestry e Fire Protection (2008) 43 Cal.App.4th 936, 956 (fact that Department of Pesticide Regulation had assessed environmental effects of certain herbicides in general did not excuse failure to assess effects of their use for specific timber harvesting project).

1. The IS/ MND Fails to Supports its Land Use Analysis with Substantial Evidence.

The IS/MND claims that the Project is consistent with the City's General Plan. (IS/MND p. 125). However, the Project instead violates the General Plan. For instance, the Project does not provide for lower income individuals, at least it is not City of Orange - 840 The City Drive Project
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plainly apparent if that is the case, which is in violation of the Orange General Plan (see Orange General Plan LU-33). The IS/MND's shortcut land use analysis is not adequate. A clear and direct conflict with a mandatory provision of a general or specific plan usually amounts to an inconsistency that will preclude project approval.

See Families Unafraid v. County of El Dorado (1998) 62 Cal. App. 4th 1332, 1341 (project must satisfy mandatory general plan policy that is fundamental and unambiguous and does not allow discretion in interpretation and application). The IS/MND should be revised to include a deeper analysis of consistency to support its land use conclusion, rather than clear and present contradictions between the Project's provisions and consequences and the intentions and goals of the Orange General Plan.

2. The IS/ MND Fails to Supports its Findings on Greenhouse Gas Impacts with Substantial Evidence.

CEQA Guidelines S 15064.4 allow a lead agency to determine the significance of a project's GHG impact via a qualitative analysis (e.g., extent to which a project complies with regulations or requirements of state/regional/local GHG plans), and/or a quantitative analysis (e.g., using model or methodology to estimate project emissions and compare it to a numeric threshold). So too, CEQA Guidelines allow lead agencies to select what model or methodology to estimate GHG emissions so long as the selection is supported with substantial evidence, and the lead agency "should explain the limitations of the particular model or methodology selected for use." CEQA Guidelines S 15064.4(c).

CEQA Guidelines sections 15064.4(b) (3) and 15183.5(b) allow a lead agency to consider a project's consistency with regulations or requirements adopted to implement a statewide, regional, or local plan for the reduction or mitigation of GHG emissions.

CEQA Guidelines IS 15064.4(b) (3) and 15183.5(b)(1) make clear qualified GHG reduction plans or CAP should include the following features:
(1) Inventory: Quantify GHG emissions, both existing and projected over a specified time period, resulting from activities (e.g., projects) within a defined geographic area (e.g., lead agency jurisdiction); (2) Establish GHG Reduction Goal: Establish a level, based on substantial evidence, below which the contribution to GHG emissions from activities covered by the plan would not be cumulatively considerable;
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(3) Analyze Project Types: Identify and analyze the GHG emissions resulting from specific actions or categories of actions anticipated within the geographic area;
(4) Craft Performance Based Mitigation Measures: Specify measures or a group of measures, including performance standards, that substantial evidence demonstrates, if implemented on a project-by- project basis, would collectively achieve the specified emissions level;
5) Monitoring: Establish a mechanism to monitor the CAP progress toward achieving said level and to requite amendment if the plan is not achieving specified levels;
Collectively, the above-listed features tie qualitative measures to quantitative results, which in turn become binding via proper monitoring and enforcement by the jurisdiction——all resulting in real GHG reductions for the jurisdiction as a whole, and the substantial evidence that the incremental contribution of an individual project is not cumulatively considerable.

Second, it is not enough for an environmental document to conclude there is no significant GHG emissions impacts based upon a determination of consistency with a GHG Reduction Plan, without also making a determination based upon substantial evidence of the project's actual cumulative contributions to GHG emissions: In other words, a determination of consistency is only a starting point. Compliance or non- • compliance is merely one factor to be considered. The lead agency must explain how reliance on any particular plan or regulation addresses a potential impact.

Here, however, the IS/MND fails to demonstrate consistency with the 2017 Scoping Plan Update addressing the SB 32 targets (IS/MND p. 101) that the GHG Reduction Plan includes the above-listed requirements to be considered a qualified CAP or GHG Reduction Plan for the City. As such, the IS/MND leaves an analytical gap showing that compliance with said plans can be used for a project-level significance determination for the Project. Second, the IS/MND fails to explain how compliance with the 2017 Climate Change Scoping Plan Update leads to a less than significant & Cal. Nat. Res. Agency, Final Statement of Reasons for Regulatory Action, Amendments to the State CEQA Guidelines, OAL Notice File No. Z-2018-0116-12 (Nov. 2018), at p. 95; see also Lighthouse Field Beach Rescue v. City of Santa Cruz (2005) 131 Cal. App. 4th 1170, 1207 ('''[A]n inconsistency between a project and other land use controls does not in itself mandate a finding of significance. [Citations.]
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impact (IS/MND pp. 101-106), and specifically offsetting the increased GHG emissions due to increased traffic, nor does it acknowledge updated Scoping Plan Updates since 2017 that have been released or proposed since the drafting of the IS/MND.

The IS/ MND Fails to Demonstrate How Compliance or Consistency with Applicable Greenhouse Gas Reduction Plans Will Lead to a Less than Significant Impacts on Greenhouse Gas Emissions.

Second, the IS/MND fails to explain or analyze how compliance with the GHG Reduction Plan, even if it qualified for a consistency evaluation, will lead to a less than significant impact. The lead agency should explain how implementing the particular requirements in the plan, regulation or program ensure that the project's incremental contribution to the cumulative effect is not cumulatively considerable" (emphasis added).?
Here, the IS/MND merely concludes that the proposed project would not conflict with the reduction measures proposed in SB 32 or with any of the General Plan metrics, or any applicable plan, policy, or regulation adopted to reduce GHG emissions. (IS/MND p. 105). This conclusion is dubious. Not only do none of the tables attend to the necessary increase in vehicular traffic due to the increase housing and commercial density, it assumes that a planned, but not confirmed reduction of lanes for bicycles or the widening of walkways would reduce vehicle emissions. "Formulation of mitigation measures should not be deferred until some future time." CEQA Guidelines § 15126.4(a)(1) (B); see also San Joaquin Raptor Rescue Center v. County of Merced (2007) 149 Cal.App.4th 645, 671 [EIR failed to provide and commit to specific criteria or standard of performance for mitigating impacts to biological habitats]; Preserve Wild Santee v. City of Santee (2012) 210 Cal.App.4th 260, 281 [city improperly deferred mitigation to butterfly habitat by failing to provide standards or guidelines for its management].
• Natural Resources Agency (Nov. 2018) Final Statement of Reasons For Regulatory Action:

Amendments To The State CEQA Guidelines ("2018 Final Statement of Reason"), p. 6, http://resources.ca.gov/ceqa/docs/2018 CEQA Final Statement of%2 OReasons 111218.pdf;
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4. The IS/MND Fails to Evaluate Cumulative Project GHG Impacts.

An IS/MND must discuss cumulative impacts when they are significant and the project's incremental contribution is "cumulatively considerable." CEQA Guidelines $15130(a). A project's incremental contribution is cumulatively considerable if the incremental effects of the project are significant "when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects." CEQA Guidelines $15065(a)(3).

Here, there is no evidence that the IS/MND's Air Quality, Energy, Greenhouse Gas Emissions, and Health Risk Assessment Impact Analysis evaluated the Project's cumulative project GHG emissions.

Southwest Carpenters concurs with SAFER's GHG appeal analysis. Specifically, the failure of the IS/MND to commit or accord with California's Executive Order B-55- 18 as one of the state's long-term climate goals, as held in Center for Biological Diversity v.

Department of Fish and Wildlife (2015) 62 Cal.4th 204. The IS/MND excludes from its project design all-electric buildings or EV charging infrastructure and as such, is dubiously consistent with Executive Order B-55-18 (Appeal p. 5). The MND also fails to evaluate consistency with updated plans, such as CARB's 2022 Carbon Neutrality Scoping Plan and instead uses the outdated 2017 Scoping Plan, or the South Coast Air Quality Management Plan for its 3,000 MTC02e annual GHG threshold and its consistency with the 2022 CARB Scoping Plan (Appeal p. 5).

The IS/MND needs to conduct a cumulative GHG impacts analysis, and if there is a potentially significant impact, impose adequate and all feasible measures.

5. The IS/MND Fails to Analyze Cumulative Project Air Quality Impacts.

The IS/MND indicates that the Project would have less than significant impacts across all domains. (IS/MND p. 53). However, the air quality analysis fails to attend to all the nearby sensitive receptors, such as all surrounding single-family residences, the Vista Del Rio Apartments, Memory Lane Park, Santa Ana River-Trail Honeycomb Pocket Park, Park City Apartment Homes, Neighborhood Park, the Oakmont of Orange Assisted Living Facility, the Best Western Plus Hotel, Riverdale Elementary School, Lampson Elementary School, Islander Apartments, Portofino Apartments, and many others. This is inappropriate. Whether these nearby receptors are impacted, and to what extent, may not end up being significant, but the City nonetheless has a duty to attend to these variables. An agency may not avoid its responsibility to prepare proper City of Orange - 840 The City Drive Project
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environmental analysis by failing to gather relevant data. Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 311. The problem with this, especially concerning the skilled nursing facility, is that no analysis was done to establish an impact to these sensitive communities, especially when air quality could have significant impacts on these elderly communities.

Despite these serious considerations, the IS/MND concludes that the impacts would be less than significant (IS/MND p. 53), even though there is a low likelihood that the Project would not increase air quality impacts given that the project site is currently mostly a surface parking lot and will be improved with significant parking accommodations and retail and residential space, especially when an influx of traffic due to the additional retail and residential space will increase congestion and decrease air quality in the area. These reductions in air quality are likely to impact at least some, if not all of the surrounding sensitive receptors, especially the elderly at the assisted living facility.

The IS/MND needs to conduct a cumulative air quality impacts analysis, and if there is a potentially significant impact, impose adequate and all feasible measures. An agency may not avoid its responsibility to prepare proper environmental analysis by failing to gather relevant data. Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 311.

Here, the relevant data would be the unaccounted sensitive receptors and how the increased emissions would impact the residents of the Project itself when they utilize. the various pool facilities, walkways, and other amenities that would involve substantial movement at and around the Project site.

Beyond this, the Southwest Carpenters concurs with the SAFER appeal concerning air quality impacts and production of toxic diesel emissions, and the IS/MND's failure to include qualified health risk assessments, and further CEQA violations for failure to provide adequate toxic air contaminant emissions and their adverse impacts as required by Sierra Club v. City of Fresno (2018) 6. Cal.5th 502, 518, and a failure to consider the diesel particulate matter ("DPM") from construction activities, which is especially egregious since DPM is a known carcinogen (Appeal p. 4), and the proximity of the multitude of nearby sensitive receptors to the Project.

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6. The IS/ MIND Fails to Adequately Disclose, Analyze the Project's Significant Noise Impacts.
•The IS/MND discloses that the Project will not have significant construction noise impacts, proposes mitigation measures for one metric, but improperly concludes those assertions (IS/MND p. 131).

First, the IS/MND fails to account for many of the nearby sensitive receptors, such as all surrounding single-family residences, the Vista Del Rio Apartments, Memory Lane Park, Santa Ana River-Trail Honeycomb Pocket Park, Park City Apartment Homes, Neighborhood Park, the Oakmont of Orange Assisted Living Facility, the Best Western Plus Hotel, Riverdale Elementary School, Lampson Elementary School, Islander Apartments, Portofino Apartments, and many others. This is inappropriate.

Whether these nearby receptors are impacted, and to what extent, may not end up being significant, but the City nonetheless has a duty to attend to these variables. An agency may not avoid its responsibility to prepare proper environmental analysis by failing to gather relevant data. Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 311.

The IS/MND also indicates that details were not available pertaining to proposed rooftop mechanical ventilation systems, and instead, its analysis used average noise levels for similar systems. (IS/MND p. 134). This is inappropriate. Average estimates are irrelevant in determining noise impacts because they are simply too speculative relative to the specific needs of the Project. The actual noise contributions due to these systems could far exceed legal maximums, thereby skirting the legal requirements for reducing noise levels of new development projects. An agency may not avoid its responsibility to prepare proper environmental analysis by failing to gather relevant data. Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 311. As such a new IS/MND must be prepared to include proper analysis.

It is also unlikely the permanent dBA increase would only amount to a 0.1 as suggested by the table provided (IS/MND p. 135). The Project is replacing a large parking lot and offices that are mostly only used during business hours with a multi-use residential and commercial development that will reach seven stories (the IS/MND is also not consistent with how many stories, as some description list six stories and others list. seven, see IS/MND pp. 6-7), host 225 multi-family residential units, which includes 9,000 square feet of retail and restaurant space, which would include a fitness center and lounge area, a pool, two courtyards, as well aș a 3-story basement parking structure City of Orange - 840 The City Drive Project
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(IS/MND pp. 6-7). Significantly, the pool and courtyard is elevated atop the 5-foot parking podium (IS/MND p. 9). The Project is also incorporating 434 new parking spaces fot residents in addition to the new parking structure to offset the loss of parking spaces currently occupying the anticipated project site (IS/MND pp. 9-11).

However, the IS/MND also indicates it cannot offer the required allotment of parking under the law, and is seeking a 10% parking adjustment for failing to meet the 481 vehicular spaces required by code (IS/MND p. 11). This will naturally offset and burden the other proposed parking structure, thereby increasing noise and traffic to that structure. It is unlikely this redirection would result in a net decrease in noise levels, given that the second parking structure is a surface structure rather than a subterranean parking structure.

7. The IS/ MND Fails to Adequately Analyze Hazards and Hazardous Materials Impacts.

The IS/MND's analysis of Hazards and Hazardous Materials Impacts is deficient. In it, it references various mitigation measures for those requiring them (IS/MND p. 107), and claims that at most, impacts would be less than significant with mitigation incorporated, and specifically, significant impacts concerning the project's potential location on a list of hazardous materials within a quarter mile of a school. (IS/MND p. 107).

Significantly, the data gathered is partially based on the Phase I Environmental Site Assessment that was prepared nearly four years ago, on or about July 18, 2019, and two years ago for the parking garage section on January 27, 2021. (IS/MND p. 107).

These reports are likely too attenuated now in terms of their data collection to provide adequate evidence for the conclusions drawn by the hazards and hazardous material impacts section. An agency may not avoid its responsibility to prepare proper environmental analysis by failing to gather relevant data. Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 311.

While this would be inappropriate for any analysis section, it is especially egregious given the hazards and hazardous impacts and their potential impacts to the nearby sensitive receptors, including Memory Lane Park, Santa Ana River-Trail Honeycomb Pocket Park, Park City Apartment Homes, Neighborhood Park, the Oakmont of Orange Assisted Living Facility, the Best Western Plus Hotel, Riverdale Elementary School, Lampson Elementary School, Islander Apartments, Portofino Apartments, and many others. Insufficient hazards and hazardous materials analysis, or lack thereof, is City of Orange - 840 The City Drive Project
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most likely to impact, and significantly, the Oakmont of Orange Assisted Living Facility and the Riverdale Elementary School and Lampson Elementary School, although all nearby residents would almost assuredly care to remain abreast of outdated hazards and hazardous materials analyses adjacent to their homes. This is also inconsistent with the City's General Plan, which presumes to concentrate hazards and hazardous materials within its industrial area. (IS/MND p. 108) Yet, the project site is not in an industrial zone, and is clearly in and surrounded by residences, schools, parks, small businesses and other commercial uses, and a litany of other sensitive receptors. Therefore, it is not enough to suggest compliance with local, state, and federal laws (IS/MND p. 108) would suffice when the project site does not exist where the IS/MND pretends that it does, i.e., in an industrial zone.

The IS/MND also ignores potential wildfire dangers near the proposed project site, namely, the Santa Ana River Trail-Honeycomb Pocket Park to the southeast, a massive park that was not acknowledged in its wildfire analysis (IS/MND pp. 114-115), and should have been considering the scale and size of the park, and its proximity to the project site.

Lastly, Southwest Carpenters concurs with the analysis in SAFER's appeal. Specifically, the Voluntary Cleanup Agreement with the Department of Toxic Substances Control ("DTSC") for assessing the tetrachloroethene ("PCE") release due to the dry-cleaning business located on the residential portion of the Project (Appeal p. 7) should be reviewed and reviewable in approving the Project. Despite a failure to do so, the IS/MND still compliance with local, state, and federal laws without first obtaining a No Further Action letter prior to the issuance of any building permits or disclosure of investigation activities that occurred in October and September of 2022.

8. The IS/MND Fails to Adequately Analyze Significant Traffic and Transportation. Impacts.

As was mentioned in the prior analyses, the abundance of nearby sensitive receptors, such as all surrounding single-family residences, the Vista Del Rio Apartments, Memory Lane Park, Santa Ana River-Trail Honeycomb Pocket Park, Park City Apartment Homes, Neighborhood Park, the Oakmont of Orange Assisted Living Facility, the Best Western Plus Hotel, Riverdale Elementary School, Lampson Elementary School, Islander Apartments, Portofino Apartments, and many others would likely impact traffic and transportation in at the site and nearby the site. Despite this likelihood, the IS/MND concludes that impacts will either be less than significant City of Orange - 840 The City Drive Project
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with mitigation incorporated, or less than significant (IS/MND p. 152). These are dubious conclusions. First, the increase in hundreds of available parking spaces and existence of retail space in place of surface-level parking will necessarily increase traffic and transportation issues in the area, especially, as the IS/MND notes, to LOS and intersection impacts (IS/MND p. 163). The mitigation measure involves the implementation of additional traffic signals and signs, and indicates that the project applicant will be fully responsible for the construction of these signs (IS/MND p. 163). However, responsibility for elements of a project is hardly sufficient mitigation for what'are likely to be significant increases and burdens placed on nearby traffic in the area, especially considering proximity to the 22 Freeway and major intersections like The City Drive and Garden Grove. Attending to a what appears to be a largely irrelevant mitigation tool, on its own, in the comprehensive traffic and transportation analysis ignores congestion issues likely to arise due to the project's potential implementation is insufficient to address pertinent factors of traffic impacts to the nearby sensitive receptors and other businesses in the area. An agency may not avoid its responsibility to prepare proper environmental analysis by failing to gather relevant data. Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 311.

The IS/MND Fails to Adequately Analyze Significant Biological Impacts.

The IS/MND analyzes biological impacts and finds no potential for a significant impact that would be mitigated through mitigation measures (IS/MND p. 70).

Significantly, the proposed project is located adjacent to several parks, including Memory Lane Park and Santa Ana River Trail-Honeycomb Pocket Park.

Next, the last field survey was conducted almost three years ago (IS/MND p. 70), only one time during the year, and only conducted the survey at one time during the day (10 am). This hardly offers a sufficient sample of the flora and fauna likely to be impacted throughout the year, and whether certain flora and fauna would be impacted more during one season of the year compared other seasons. This is especially important. considering the fifty-nine (59) special status species found at the proposed project site (IS/MND p. 71). The IS/MND suggests that it is unlikely any of the special status species would be impacted on-site (IS/MND p. 71), but this too is unlikely for exactly the reason recognized in the IS/MND, namely, due to the proximity of the riparian habitat at the Santa Ana River: Yet it is precisely because of the close proximity to the river that these species would likely be impacted to a nearby potential project, be it to a disruption in a habitat they create at the project site, or nearby.

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Specifically, the BIO-1 nesting bird avoidance mitigation, which is in large part deferred mitigation efforts that require a survey that has yet to be conducted (IS/MND p. 432). This is inappropriate. "Formulation of mitigation measures should not be deferred until some future time." CEQA Guidelines S 15126.4(a)(1) (B); see also San Joaquin Raptor Rescue Center v. County of Merced (2007) 149 Cal. App.4th 645, 671 [EIR failed to provide and commit to specific criteria or standard of performance for mitigating impacts to biological habitats]; Preserve Wild Santee v. City of Santee (2012) 210 Cal.App.Ath 260, 281 [city improperly deferred mitigation to butterfly habitat by failing to provide standards or guidelines for its management]. As such, the BIO-1 mitigation measure is inappropriate and does not sufficiently reduce the environmental impact to less than significant levels through its deferred mitigation measures in violation of CEQA.

10. The IS/ MIND Fails to Adequately Analyze Significant Recreation Impacts.

The IS/MND indicates that the proposed project would have a less than significant impact on the increase usage of regional parks or other recreational facilities to the point of substantial physical deterioration or that the proposed project's construction would involve the expansion or development of recreational facilities that might have an adverse physical effect on the environment. (IS/MND p. 150):

These conclusions are drawn without a full assessment of nearby parks. For instance, the City's analysis does not include recognition or acknowledgement of the nearby Santa Ana River Trail-Honeycomb Pocket Park, Memory Lane Park, Neighborhood Park, or other nearby recreational areas and facilities specific and adjacent to the proposed project site which are likely to see increases in patron use given the nontrivial expansion of residences and businesses that will attract not only permanent patrons of these parks because of the new residential accommodations, but also due to the proposed business and commercial uses likely to see an influx of additional patrons who can utilize these nearby recreational areas and facilities. An agency may not avoid its responsibility to prepare proper environmental analysis by failing to gather relevant data. Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 311.

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IV. THE PROJECT VIOLATES THE STATE PLANNING AND ZONING

LAW AS WELL AS THE CITY'S GENERAL PLAN
A. Background Regarding the State Planning and Zoning Law An IS/MND must identify, fully analyze and mitigate any inconsistencies between a proposed project ard the general, specific, regional, and other plans that apply to the project. CEQA Guidelines S 15125(d); Pfeiffer v. City of Sunnyvale City Council (2011) 200 Cal.App.4th 1552, 1566; Friends of the Eel River v. Sonoma County Water Agency (2003) 108 Cal.App.4th 859, 881. There does not need to be a direct conflict to trigger this requitement; even if a project is "incompatible" with the "goals and policies" of a land use plan, the IS/MND must assess the divergence between the project and the plan, and mitigate any adverse effects of the inconsistencies. Napa Citizens for Honest Government v. Napa County Bd. of Supervisors (2001) 91 Cal.App.4th 342, 378-79; see also Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903 (holding under CEQA that a significant impact exists where project conflicts with local land use policies); Friends of "B" Street v. City of Hayward (1980) 106 Cal.App.3d 988, 998 (held county development and infrastructure improvements must be consistent with adopted general plans) (citing Gov. Code 65302).

B. The Proposed Land Use Amendments and Entitlements Conflict with SB 375 and SCAG's 2020 Regional Transportation Plan and Sustainable Communities Strategy
In 2008, Senate Bill 375 amended CEQA and empowered metropolitan planning organizations (MPOs) to enact regional plans to reduce GHG emissions from passenger vehicles. MOs are required to prepare regional transportation plans (RTP) and sustainable community strategies (SCS) in an effort to meet CARB's GHG reduction goals under SB 375. Gov. Code § 65080(b) (2) (B). SB 375 specifically targets GHG emissions from passenger vehicles by linking land use decisions to transportation planning. Id. If the regional SCS/RTP plan does not achieve CARB's GHG reduction targets, then the MPO is required to create an alternative planning strategy (APS) that shows how the targets can be achieved through other mechanism such as alternative development patterns, infrastructure decisions, or other alternative transportation measures or policies that can still achieve CARB's reduction targets.

Gov. Code $ 65080(b) (2) I.

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For this Project, the applicable plan is SCAG's 2020-2045 RTP/SCS plan adopted on September 3, 2020.

The IS/MND fails to analyze the Project's consistency with SCAG's 2020-2045 RTP/SCS plan given the many unverified and unanalyzed transportation impacts and the strong likelihood of increases to VMT rather than decreases due to the Project's development on land that consists mostly of parking spaces which will be replaced with substantial residential, commercial, and hotel uses, as well as no indication of transit discounts or improvements to accessibility to the Amtrak commuters during construction or how it impacts their commute or use after the Project's completion, or how the Project's significant patronage, resident, and hotel occupant increases would affect demand on the surrounding area and transportation networks. For example, SCAG's 2020 RTP/SCS requires or suggests the following that the Project fails to consider or adopt in the IS/MND:

Land Use Policies: pursuing affordable housing or providing more transportation options for short trips;!°
Transportation Network Strategies: providing transit fare discounts; providing transit integration strategies such as integration of active transportation and transit by improving pedestrian access and bicyclist access;"
Transportation Demand Management Strategies: encourage use and implementation of TDM strategies such as rideshare
incentives, parking management, parking subsidies for carpoolers, incentives for telecommuting, integrated mobility hubs, or additional investments in active transportation infrastructure;! and
Clean Vehicle Technology Strategies: use of neighborhood electric vehicles (NEVs), and anticipating shared mobility platforms, car- to-car communication or automated vehicle technologies. 13 The IS/MND fails to demonstrate consistency with the most recent SCAG 2020-2045 RTP / SCS Plan and should be revised to meet its goals and policies. 10 SCAG (Sep. 2020) 2020 RTP/SCS, pp. 25-36.
11 Id.
12 Id.
13 Id.

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V. CONCLUSION
Based on the foregoing, we respectfully request the City deny the Project, its IS/MND, and order the applicant to revise the Project to ensure its consistency with all applicable laws and regulations as detailed above, as well as to study the "whole of the action" and use the accurate bona fide project description and baseline for purposes of CEQA review. "CEAQ contemplates serious and not superficial or pro forma consideration of the potential environmental consequences of a project. Leonoff v.

Monterey County Bd. Of Supervisors (1990) 222 Cal.App.3d 1337, 1347, 272 Cal.Rptr. 372; emphasis added; Burbank-Glendale-Pasadena Airport Authority v. Hensler (1991) 233 Cal.App.3d 577, 593, fn. 3.

If the City has any questions or concerns please do not hesitate to contact our office.

Sincerely,
Jason A. Cohen, Esq.

Attorneys for Southwest Regional
Council of Carpenters
Attached:

March 8, 2021 SWAPE Letter to Mitchell M. Tsai re Local Hire Requirements and Considerations for Greenhouse Gas Modeling (Exhibit A); Air Quality and GHG Expert Paul Rosenfeld CV (Exhibit B); and Air Quality and GHG Expert Matt Hagemann CV (Exhibit C).