CITYOF
OXNARD
Chaparro, Rose <[email protected]>
CALIFORNIA
9/17/24, D. Water Workshop
3 messages
Steven Nash <[email protected]> Mon, Sep 16, 2024 at 12:38 PM To: "[email protected]" <[email protected]>
Questions and comments for the City Council that I would like to be asked and answered.
From the July 24th Fox Canyon GMA UWCD Extraction Barrier/Brackish Water Treatment Project (EBB)) presentation, If the EBB wells induce downward migration of contaminated shallow groundwater to drinking water aquifers, the EBB is unlikely to receive the permits needed for construction and/or operation.
So, what is Plan B? And, EBB is a somewhat unique endeavor. What are the chances of it not achieving its goals? What is Oxnard's financial liability in such an event? Oxnard, as United's largest customer, would bear the highest cost for the EBB Project. Why should Oxnard and its residents pay for this when we have our own AWPF? This is a duplication of infrastructure that doesn't make financial sense for Oxnard. Why didn't United work with the City to fully utilize the AWPF? Why is United committing itself to spend upwards of $500 million dollars it doesn't have for a project with a very limited benefit and a lot of liability for Oxnard? On the matter of groundwater sustainability, from a California Records Act request, United has diverted an average of 36,379 AF into the basin over the last twenty years. The GMA uses an average historical pumping rate of 121,000 AF per year. This is an average of 84,621 AF of water taken from the basin but not replenished. Even if EBB is permitted to move forward, How does United plan to bring the basins out of being classified as "critically overdrafted" by the California Department of Water Resources? Thank you.
Best,
Steve Nash
Chaparro, Rose <[email protected]> Mon, Sep 16, 2024 at 2:34 PM To: Steven Nash < [email protected]>
Cc: "[email protected]" < [email protected]>
Good afternoon Mr. Nash,
We are in receipt of your email and it will be forwarded to the City Council for consideration. Thank you.
Rose Chaparro, CMC
City Clerk
City of Oxnard
300 West Third Street. Fourth Floor
Oxnard, CA 93030
Main Line: (805) 385-7803
[email protected]
CITY OF
OXNARD
CALIFORNIA
[Quoted text hidden]
Chaparro, Rose <rose.chaparro @oxnard.org> Mon, Sep 16, 2024 at 2:39 PM Cc: Stephen Fischer <[email protected]>, Alexander Nguyen <[email protected]>, "Golden, Ashley" <ashley. [email protected]>, "Wolfe, Michael" <[email protected]> Bcc: John Zaragoza <[email protected]>, "MacDonald, Bryan" < [email protected]>, Gabriela Basua <[email protected]>, Oscar Madrigal <[email protected]>, Bert Perello <[email protected]>, Gabe Teran <[email protected]>, "Arthur Valenzuela Jr." <[email protected]> Good afternoon Council (via bcc):
Please find attached email below from Steve Nash with questions and written comments regarding the 9/17 Council Meeting agenda, Item No. D.1 Public Works Department Water Workshop. Thank you.
Rose Chaparro, CMC
City Clerk
City of Oxnard
300 West Third Street. Fourth Floor
Oxnard, CA 93030
Main Line: (805) 385-7803
sor @[email protected]
OXNARD
CALIFORNIA
(Quoted text hidden]
CITYON
OXNARD
Chaparro, Rose <[email protected]>
CALFORNIA
Fwd: City Council Meeting Comment Submission - Lockwood III Apartments Project (PH-1)
2 messages
Marjan Kris Abubo <[email protected]> Tue, Sep 17, 2024 at 8:24 PM To: [email protected], [email protected]
Good evening,
I am circling back on this submitted comment letter that we sent out earlier this morning. Please see attached comment My best,
Marjan R. Abubo
Lozeau | Drury LLP
1939 Harrison St., Suite 150
Oakland, CA 94612
Office: 510.836.4200
Direct: 510.607.8238
[email protected]
- Forwarded message
From: Marjan Kris Abubo <[email protected]>
Date: Tue, Sep 17, 2024 at 10:39 AM
Subject: City Council Meeting Comment Submission - Lockwood III Apartments Project (PH-1) To: <[email protected]>
Cc: Hayley Uno <[email protected]>, Richard Drury <[email protected]> Good morning,
On behalf of the Supporters Alliance for Environmental Responsibility, please see the attached comment letter addressed to the City Council for the Lockwood III Apartments Project. This Project will be before the City Council this evening as Item Number 1 under Public Hearings. I have received the Zoom instructions for the public hearing and will be in attendance remotely. Thank you for coordinating logistics on this matter.
At your earliest convenience, please confirm receipt of this email and attachment. Thank you.
My best,
Marjan R. Abubo
Lozeau | Drury LLP
1939 Harrison St., Suite 150
Oakland, CA 94612
Office: 510.836.4200
Direct: 510.607.8238
[email protected]
2024.09.17 Final CC Comment Letter - Lockwood Iil.pdf
495K
Chaparro, Rose <[email protected]> Tue, Sep 17, 2024 at 8:38 PM Cc: Stephen Fischer <[email protected]>, Alexander Nguyen < [email protected]>, "Golden, Ashley" <[email protected]>, "Pengilley, Jeff" <[email protected]>, Joe Pearson II <Joe. [email protected]>, Rob Ruben <[email protected]>
Bcc: John Zaragoza <[email protected]>, "MacDonald, Bryan" <[email protected]>, Gabriela Basua <[email protected]>, Oscar Madrigal <[email protected]>, Bert Perello <[email protected]>, Gabe Teran <[email protected]>, "Arthur Valenzuela Jr." <arthur. [email protected]> Dear Council,
Please find attached public comment submitted for tonight's public hearing item M.1 on the agenda.
This email was not received by the City Clerk's Office ([email protected]) earlier today. It was received during the meeting at 8:24 p.m. I am including our IT Director to check into this. Thank you.
Rose Chaparro, CMC
City Clerk
City of Oxnard
300 West Third Street. Fourth Floor
Oxnard, CA 93030
Main Line: (805) 385-7803
[email protected]
OXNARD
CALIFORNIA
[Quoted text hidden]
- 2024.09.17 Final CC Comment Letter - Lockwood III.pdf 495K
LOZEAU DRURYLe T 510.836.4200 1959 Harrison Street, Ste 150 www.lozeaudrury.com 510 836.4205 Oakland, CA 94612 Marjan(@lozeaudrury.com
Via Email
September 17, 2024
Oxnard City Council Jeff Pengilley, Community Development Director John C. Zaragoza, Mayor City of Oxnard
Bryan A. McDonald, Mayor Pro Tem 214 South G Street
Bert E. Perello, Councilmember Oxnard, CA 93030
Gabe Teran, Councilmember [email protected]
Oscar Madrigal, Councilmember
Gabriela Basua, Councilmember Rose Chaparro, City Clerk Arthur Valenzuela, Councilmember City Clerk's Office
City of Oxnard City of Oxnard
214 South C Street 300 West Third Street
Oxnard, CA 93030 Oxnard, CA 93030
[email protected] [email protected]
Re: Comment on Mitigated Negative Declaration (No. 24-01) Lockwood III Apartments Project
City Council Agenda Item 1 (September 17, 2024)
Dear Mayor Zaragoza and Honorable Members of the City Council, I am writing on behalf of Supporters Alliance for Environmental Responsibility ("SAFER") and its members living, working, and recreating in and around the City of Oxnard ("'City") regarding to the Initial Study and Mitigated Negative Declaration (MND No. 24-01) ("MND") prepared for the Lockwood III Apartments Project ("Project"). The Project will be heard as Agenda Item 1 at the City Council's September 17, 2024 meeting. SAFER has previously commented on the Project as well as rebutted the City's responses to comments, attached as Exhibit A, and incorporates all comments herein.
SAFER maintains its position that the City cannot proceed with the Project as proposed because it fails to meet the City's required minimum affordability requirement. SAFER further believes that the MND is improper under the California Environmental Quality Act ("CEQA"), and that an environmental impact report ("EIR") is required. As explained in more detail below, there is a fair argument that the Project may have potentially significant environmental impacts related to biological resources, air quality, and noise. SAFER's review of the MND was assisted by expert biologist Dr. Shawn Smallwood; expert consulting firm Soil/Water/Air Protection Enterprise ("SWAPE"); indoor air quality expert Francis Offermann, CIH; and the expert acoustical consulting firm Wilson Ihrig.
September 17, 2024
Comment on IS/MND for Lockwood III Apartments Project
Oxnard, CA
SAFER requests that the Planning Commission refrain from recommending adoption of the MND and approval of the Zone Change to the City Council and refrain from approving the Project's Special Use Permit and Density Bonus. SAFER instead requests that the City enforce its local ordinance to require the minimum affordability requirements and prepare an EIR to ensure that potentially significant environmental impacts of this Project are fully disclosed, analyzed, and mitigated.
PROJECT DESCRIPTION
The Project is located at 2151 Lockwood Street, in Oxnard, California. The Applicant, Severed comprised 2, opting the conscated onto a ney mis up til residenis all situated atop a two-level subterranean parking garage with 351 parking spaces.
The Project gross floor area measures 225,348 square feet and the Project site sits on approximately 5.17 acres, with sensitive receptors surrounding the site. The total residential space would be 201,115 SF; covered balconies, patios, parking and walkways would comprise 75,250 SF; corridors would comprise 40,497 SF; balconies 22,610 SF; utility space 16,710 SF; and community space 13,609 SF. The remaining SF would be comprised of corridor and vertical circulation (2,668 SF) and non-conditioned building (592 SF).
LEGAL STANDARD
As the California Supreme Court has held "[ilf 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 [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, 504-05].) "Significant environmental effect" is defined very broadly as "a substantial or potentially substantial adverse change in the environment." (Pub. Res. Code § 21068; see also 14 CCR § 15382.)
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.
September 17, 2024
Comment on IS/MND for Lockwood III Apartments Project
Oxnard, CA
Where an initial study shows that the project may have a significant effect on the environment, a mitigated negative declaration may be appropriate. However, a mitigated negative declaration is proper only if the project revisions would avoid or mitigate the potentially significant effects identified in the initial study "to a point where clearly no significant effect on the environment would occur, and... there is no substantial evidence in light of the whole record before the public agency that the project, as revised, may have a significant effect on the environment." PRC §§ 21064.5 and 21080(c)(2); Mejia v. City of Los Angeles (2005) 130 Cal.App.4th 322, 331. In that context, "may" means a reasonable possibility of a significant effect on the environment. PRC §§ 21082.2(a), 21100, 21151(a); Pocket Protectors, 124 Cal.App.4th at 927; League for Protection of Oakland's etc. Historic Res. v. City of Oakland (1997) 52 Cal.App.4th 896, 904-05.
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 effecteven 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 making administrative determinations. Ordinarily, public agencies weigh the evidence in the record before them and reach a decision based on a preponderance of the evidence. [Citations]. 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.
The lead agency's decision is thus largely legal rather than factual; it does not resolve conflicts in the evidence but determines only whether substantial evidence exists in the record to support the prescribed fair argument.
Kostka & Zishcke, Practice Under CEQA, §6.29, pp. 273-74.
The Courts have explained that wit 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).
September 17, 2024
Comment on IS/MND for Lockwood II! Apartments Project
Oxnard, CA
DISCUSSION
I. The Project Fails to Satisfy the Minimum Affordable Housing Requirement under the City's Affordable Housing Additive Zone.
The City cannot approve the Project and its related entitlements until it satisfies the affordable housing zone requirements under the City's municipal code. The Applicant requests for a zone change to include the affordable housing discretionary additive zone ("AHD Zone") because the Project site is currently zoned as Business Research Park ("BRP"). (September Staff Report, p. 1.) According to the City, "density bonus units are considered separately from that calculation under the AHD Additive zone." (Id., p. 3.) SAFER disagrees. Oxnard's Municipal Code Section 16-420 includes the provisions for the City's AHD Lone, which requires residential development proposals to designate 20% of all units for affordable housing, defined as affordable to extremely-low income, very-low income, or low income households. (OMC, Sections 16-420D(A)(1) & 16-420(E)(A).)
Here, a plain interpretation of the City's municipal ordinance should mean that all 234 units as proposed under the AHD Zone must be considered. There is nothing in the municipal code that excludes the density bonus units in calculating the minimum affordability requirements of the City's AHD Zone. When the City adopted Section 16-420, it could have made such exemption but chose not to. Other jurisdictions have done exactly that. For example, when the City of Menlo Park adopted its affordable housing overlay zone, it explicitly intended to remove the density bonus units from its calculation for determining the minimum affordability requirement:
"The affordable units required pursuant to subsection (a)(3) of this section shall be calculated based on the total number of units in the development, excluding any units permitted pursuant a density bonus as set forth in Section 16.98.050. (Ord. 1103 $ 3, 2023)."
(Menlo Park Municipal Code, Section 16.98.) Here, the City did not include such language when adopting its affordable housing overlay ordinance. As such, the plain language of the law applies, and the AHD Zone's calculation must include the units granted under the proposed density bonus. That said, only 38 of the 234 proposed units (16%) will be reserved for low- income and very low-income level housing. (MND, p. 6.) Because that is well below the required minimum of twenty percent, the Project must propose an additional nine affordable units (for a total of 47 affordable housing units) to comply with the AHD Zone.
Unless and until this affordability requirement is met, the City cannot proceed with any Project approvals, including any and all entitlements requested by the Applicant. Therefore, the City must deny Planning and Zoning Permit No. 22-570-01 (allowing for the zone change) because the Project's designation of affordable housing units violates the requirements of the AHD Zone.
September 17, 2024
Comment on IS/MND for Lockwood III Apartments Project
Oxnard, CA
CONCLUSION
SAFER has submitted substantial evidence of a fair argument that the Project may have potentially significant environmental effects, and the MND prepared for the Project does not adequately analyze or mitigated the potentially significant environmental impacts stemming from the Project. Furthermore, the Project's failure to designate the minimum affordable housing units clearly violates the City's municipal code to grant the zone change.
For the foregoing reasons, SAFER requests that the Planning Commission refrain from taking any action on the Project at this time. Instead, the City must supply the much-needed affordable housing required by the City's zoning code and must and prepare an EIR to analyze and mitigate the Project's potentially significant environmental impacts prior to Project approval.
Thank you.
Sincerely,
Marian R. Abubo
LOZEAU DRURY LLP
Exhibit A
LOZEAU DRURY P T 510.836.4200 1939 Harrison Street, Ste. 150 www.lozeaudrury.com 510 836.4205 Oakland, CA 94612 [email protected]
Via Email
August 1, 2024
Oxnard Planning Commission Joe Pearson II, Planning Manager Ronald Arruejo, Chair Brenna Wengert, Associate Planner II Vincent Stewart, Vice-Chair Community Development Department, Katherine Connelly, Commissioner City of Oxnard
Miguel Lopez, Commissioner 214 South C Street
Steve Nash, Commissioner Oxnard, CA 93030
James Schuelke, Commissioner [email protected]
Anna Zielsdorf, Commissioner [email protected]
City of Oxnard
214 South C Street Rose Chaparro, City Clerk
Oxnard, CA 93030 City Clerk's Office
[email protected] City of Oxnard
300 West Third Street
Oxnard, CA 93030
[email protected]
Re: Comment on Mitigated Negative Declaration (No. 24-01) Lockwood III Apartments Project
Planning Commission Agenda Item 3 (August 1, 2024)
Dear Chair Arruejo and Honorable Members of the Planning Commission:
I am writing on behalf of Supporters Alliance for Environmental Responsibility ("SAFER") and its members living, working, and recreating in and around the City of Oxnard ("City") regarding to the Initial Study and Mitigated Negative Declaration (MND No. 24-01) ("MND" prepared for the Lockwood III Apartments Project ("Project") to be heard as Agenda Item 3 at the Planning Commission's August 1, 2024 meeting.
After careful review of the MND and its accompanying documents prepared by Environmental Science Associates, SAFER believes that the City cannot proceed with the Project as proposed because it fails to meet the City's required minimum affordability requirement. SAFER previously submitted comments on this Project and incorporates those comments herein.
SAFER further believes that the MND is improper under the California Environmental Quality Act ("CEQA"), and that an environmental impact report ("EIR") is required. As explained in more detail below, there is a fair argument that the Project may have potentially August 1, 2024
Comment on IS/MND for Lockwood III Apartments Project
Oxnard, CA
significant environmental impacts related to biological resources, air quality, and noise.
Furthermore, the MND's Mitigation Monitoring and Reporting Program fails to reflect the inclusion of a mitigation measure to address the Project's air quality impact, thereby violating CEQA.
SAFER's review of the MND was assisted by expert biologist Dr. Shawn Smallwood; expert consulting firm Soil/Water/Air Protection Enterprise ("SWAPE"); indoor air quality expert Francis Offermann, CIH; and the expert acoustical consulting firm Wilson Ihrig. Their expert comments and CVs are attached as Exhibits A through G, respectively.
SAFER requests that the Planning Commission refrain from recommending adoption of the MND and approval of the Zone Change to the City Council and refrain from approving the Project's Special Use Permit and Density Bonus. SAFER instead requests that the City enforce its local ordinance to require the minimum affordability requirements and prepare an EIR to ensure that potentially significant environmental impacts of this Project are fully disclosed, analyzed, and mitigated.
PROJECT DESCRIPTION
The Project is located at 2151 Lockwood Street, in Oxnard, California. The Applicant, SVM Development LLC, Inc., proposes the construction of a new multifamily residential development comprised of 234 dwelling units located within buildings up to five-stories, all situated atop a two-level subterranean parking garage with 351 parking spaces.
The Project gross floor area measures 225,348 square feet and the Project site sits on approximately 5.17 acres, with sensitive receptors surrounding the site. The total residential space would be 201,115 SF; covered balconies, patios, parking and walkways would comprise 75,250 SF; corridors would comprise 40,497 SF; balconies 22,610 SF; utility space 16,710 SF; and community space 13,609 SF. The remaining SF would be comprised of corridor and vertical circulation (2,668 SF) and non-conditioned building (592 SF).
LEGAL STANDARD
As the California Supreme Court has held "li]f 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 [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, 504-05].) "Significant environmental effect" is defined very broadly as "a substantial or potentially substantial adverse change in the environment." (Pub. Res. Code § 21068; see also 14 CCR § 15382.)
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 August 1, 2024
Comment on IS/MND for Lockwood III Apartments Project
Oxnard, CA
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.
Where an initial study shows that the project may have a significant effect on the environment, a mitigated negative declaration may be appropriate. However, a mitigated negative declaration is proper only if the project revisions would avoid or mitigate the potentially significant effects identified in the initial study "to a point where clearly no significant effect on the environment would occur, and... there is no substantial evidence in light of the whole record before the public agency that the project, as revised, may have a significant effect on the environment." PRC §§ 21064.5 and 21080(c)(2); Mejia v. City of Los Angeles (2005) 130 Cal.App.4th 322, 331. In that context, "may" means a reasonable possibility of a significant effect on the environment. PRC §§ 21082.2(a), 21100, 21151(a); Pocket Protectors, 124 Cal.App.4th at 927; League for Protection of Oakland's etc. Historic Res. v. City of Oakland (1997) 52 Cal.App.4th 896, 904-05.
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 effecteven 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 making administrative determinations. Ordinarily, public agencies weigh the evidence in the record before them and reach a decision based on a preponderance of the evidence. [Citations]. 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.
The lead agency's decision is thus largely legal rather than factual; it does not resolve conflicts in the evidence but determines only whether substantial evidence exists in the record to support the prescribed fair argument.
Kostka & Zishcke, Practice Under CEQA, §6.29, pp. 273-74.
August 1, 2024
Comment on IS/MND for Lockwood III Apartments Project
Oxnard, CA
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 Project Fails to Satisfy the Minimum Affordable Housing Requirement under the City's Affordable Housing Additive Zone.
The City cannot approve the Project and its related entitlements until it satisfies the affordable housing zone requirements under the City's municipal code. The Applicant requests for a zone change to include the affordable housing discretionary additive zone ("AHD Zone") because the Project site is currently zoned as Business Research Park ("BRP"). (Staff Report, p.
1.) Oxnard Municipal Code Section 16-420 includes the provisions for the City's AHD Zone, which requires residential development proposals to designate 20% of all units for affordable housing, defined as affordable to extremely-low income, very-low income, or low income households. (OMC, Sections 16-420D(A)(1) & 16-420(E)(A).) Notably, the requirements under the AHD Zone "are separate, and in addition to, the "State" density bonus" laws. (OMC, Section 16-420(A).)
Here, the City must deny Planning and Zoning Permit No. 22-570-01 (allowing for the zone change) because the Project's designation of affordable housing units violates the requirements of the AHD Zone. Specifically, only 38 of the 234 proposed units (16%) will be reserved for low-income and very low-income level housing. (MND, p. 6.) Because that is well below the required minimum of twenty percent, the Project must propose an additional nine affordable units(for a total of 47 affordable housing units) to comply with the AHD Zone.
Unless and until this affordability requirement is met, the City cannot proceed with any Project approvals, including any and all entitlements requested by the Applicant.
II. The IS/MND Fails to Adequately Describe the Project's Environmental Setting.
The City inadequately characterized the existing environmental setting and the site's ability to provide habitat for special-status species. Expert wildlife biologist Dr. Shawn Smallwood, Ph.D. reviewed the Project and Response to Comments and concluded that the Project site has value as a habitat for special status species and that the Project may have significant impacts on biological resources. Dr. Smallwood's comments are supported by a site visit by wildlife biologist Noriko Smallwood ("Ms. Smallwood"). (Ex. A, p. 1.) Ms. Smallwood is an expert wildlife ecologist with a focus on urban ecology, avian ecology, and habitat conservation. Dr. Smallwood's comments and CVs are attached Exhibits A and B.
Every CEQA document must start from a "baseline" assumption. The CEQA "baseline" is the set of environmental conditions against which to compare a project's anticipated impacts.
August 1, 2024
Comment on IS/MND for Lockwood III Apartments Project
Oxnard, CA
Communities for a Better Envt. v. So. Coast Air Qual. Mgmt. Dist. (2010) 48 Cal. 4th 310, 321.
Section 15125(a) of the CEQA Guidelines states in pertinent part that a lead agency's environmental review under CEQA:
"...must include a description of the physical environmental conditions in the vicinity of the project, as they exist at the time [environmental analysis/ is commenced, from both a local and regional perspective. This environmental setting will normally constitute the baseline physical conditions by which a Lead Agency determines whether an impact is significant." (Emphasis added.)
((14 C.C.R., § 15125(a)); see Save Our Peninsula Committee v. County of Monterey (2001) 87 Cal.App.4th 99, 124-25.) As the court of appeal has explained, "the impacts of the project must be measured against the 'real conditions on the ground, and not against hypothetical permitted levels. (Save Our Peninsula, supra, 87 Cal.App.4th 99, 121-23.) The field survey prepared by the applicant's consultants, Environmental Science Associates (ESA"), which was used to inform the environmental setting, is deficient. The reconnaissance survey concluded that a mere three species were detected at the Project site.
However, as SAFER's ecologist, Dr. Smallwood, notes that ESA failed to include the methodological details that shaped the survey findings, information that is essential "to Iped the survey
characterize the environmental setting as a basis for opining on, or predicting, potential project impacts to biological resources." (Ex. A, p. 15.) Of the three species detected by ESA, Ms.
Smallwood detected one during her site visit, but the rest of ESA's findings and subsequent conclusion starkly differs from Ms. Smallwood's site visit and findings. (Id.) As Dr. Smallwood explains, it remains unclear as to why and how ESA's survey omitted wildlife that were so abundant when Ms. Smallwood visited the Project site (Id.) The clear disparities between what ESA's and Ms. Smallwood's surveys as well as the unclear method in which ESA's survey was performed and documented require additional review.
Furthermore, Ms. Smallwood observed 25 species of vertebrate wildlife at and/or near the Project site, three of which were special-status species. (Ex. A, p. 3, Table 1) These species include the Western gull (Larus occidentalis), which is classified as a "Bird of Conservation Concern."' (Id.) Birds of Conservation Concern include "migratory nongame birds that without additional conservation action are likely to become candidates for listing under the Endangered Species Act (ESA) of 1973."2 Ms. Smallwood also observed the American kestrel (Falco sparverius) actively hunting on-site as well as Red-tailed hawk flying nearby. Both species are considered Birds of Prey, which are a valuable resource to the State of California, and are protected under state law. (Id.) "
1 See, US Fish & Wildlife Service ("USFW"), Birds of Conservation Concern 202l, pp. 18-19 https://www.fws.gov/sites/default/files/documents/birds-of-conservation-concern-202l.pdf. 3 See, Fish and Game Code, Sections 3503, 3503.5, 3505 and 3513, and California Code of Regulation, Title 14, Sections 251.1, 652 and 783-786.6
August 1, 2024
Comment on IS/MND for Lockwood III Apartments Project
Oxnard, CA
After SAFER submitted Dr. Smallwood's comment previously, the City responsed that the three identified bird species that Dr. Smallwood noted as "special status species" are not special status species "because they do not appear on CDFW's Special Animals List..." and are therefore "not protected under state law." (Response to Comments, p. 3-161.) However, Dr.
Smallwood underlines how this is misleading because the absence of species on CDFW's Special Animals List alone is not conclusive evidence that they are not "special status species." (Ex. B, p. 3.) For example, the Western gull, also identified on the Project site, is not on CDFW's Special Animals List, but is identified as a Bird of Conservation Concern under the US Fish and Wildlife Service ("USFWS"). The USFWS, notably, is identified in the California Resources Agency's Guidelines for Implementation of CEQA as an agency to identify certain species as special-status species. (Id., p. 3.) As such, the City is incorrect in concluding the identified bird species are not "special status species." Clearly, the IS/MND fails to accurately describe the Project's environmental setting. A new CEQA document is therefore required.
III. There is Substantial Evidence of a Fair Argument that the Project May Have Significant Biological Resources Impacts.
An EIR is required because substantial evidence in the record indicates a fair argument that the Project may have significant biological impacts. Dr. Smallwood's findings related to habitat loss, wildlife movement, collisions from windows and traffic, as well as impacts from domesticated animals underline the importance of preparing an EIR. For the following reasons set forth below, the City should not certify the MND and must instead prepare and circulate an EIR for the Project.
a. Habitat Loss.
Dr. Smallwood concludes that the Project may have potentially significant impacts on special status species through direct loss of habitat. (Ex. A, p. 24.) For example, given the documented breeding activity by Ms. Smallwood, Dr. Smallwood's analysis of the Project site's productive capacity finds that the Project would deny the ability to host 26 bird nests and close to a hundred birds every season. (Ex. A. pp. 14, 17.) This is especially concerning since at least four special-status species have been observed utilizing or flying over the Project site. In conjunction, then, the Project will result in the loss of foraging area for special status species. (Id, p. 25.). As Dr. Smallwood further explains, the City fails to implement any mitigation measures to adequately address the impacts of habitat loss caused by the Project. (Ex. B, p. 12.) b. Wildlife Movement.
Dr. Smallwood similarly points out that the Project will adversely impact wildlife movement. He concludes that volant wildlife use the site as a stopover area. The project would cut wildlife off from one of the last remaining stopovers and staging opportunities in the project area, forcing volant wildlife to travel even farther between remaining stopover sites." (Ex. A. p.
17.) In response, the City argues that Dr. Smallwood's findings are unsubstantiated assumptions.
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Comment on IS/MND for Lockwood III Apartments Project
Oxnard, CA
However, this is incorrect. As Dr. Smallwood explains, "It]hese patches of open space are all that many birds have left to rely on for stopover and staging. The project site itself was used by many western gulls this way, while [Ms. Smallwood] was doing her survey." (Ex. B, p. 9.) As such, Dr. Smallwood's conclusion were not mere assumptions, but rather expert findings based on observations of the Project site and the resulting behaviors of identified special-status wildlife species.
c. Collisions and Traffic.
The IS/MND fails to analyze the Project's impacts due to bird-window collisions. Dr.
Smallwood concludes that the extensive use of glass in the S-story bulldings will lead to increased bird-window collisions, and that the Project does not adequately consider the impacts that the height of the building would have on birds, during both the day and at night. (Ex. A, pp. 26-27.) He notes that there are "96 special status species of birds with potential to use the site's aerosphere." (Id.) While MND does not adequately detail to what extent glass windows will be used for the Project, Dr. Smallwood predicts that many of these birds are likely to experience window collisions. (Id.) As such, Dr. Smallwood calculates that the Project will cause 292 bird deaths due to window collisions each year, with a significant amount of these birds being protected under the Migratory Bird Treaty Act. (Id., p. 29.) Furthermore, the IS/MND fails to analyze the Project's impacts related to wildlife traffic fatalities. Dr. Smallwood calculates that the Project will generate 22,242, 187.5 annual vehicle miles travelled. (Ex. A, . p. 31). He predicts that this will result in 2,008 wildlife fatalities per year. (Id.).
d. The MND's Proposed Mitigation Measures are Unenforceable and Ineffective.
The Project's proposed mitigation measures for biological resources will certainly not reduce Project-related biological and/or cumulative impacts to a level below significance. CEQA requires that policies and mitigation measures be enforceable and effective. (CEQA Guidelines, § 15126.4(a)(1) & (2).) Here, the City maintains that Mitigation Measure BIO-1 will sufficiently address all significant impacts to all wildlife and special-status species alike. However, as Dr.
Smallwood emphasizes, the mitigation measure only discusses the preparation of a preconstruction survey. Notably, Dr. Smallwood explains, "A preconstruction survey addresses only direct take-avoidance, and does nothing to avoid or minimize the permanent loss of productive capacity of the species that would result from habitat loss. The most significant impacts are neither avoided nor minimized, nor are they compensated in any way. This measure would inadequately mitigate the impacts of the project to wildlife."
(Ex. B, p. 2.)
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Comment on IS/MND for Lockwood III Apartments Project
Oxnard, CA
The City also maintains that Mitigation Measure BIO-1 will sufficiently address cumulative biological impacts. However, as Dr. Smallwood explains, Mitigation Measure BIO-1 is a preconstruction "take-avoidance" survey, meaning that they are not positioned to minimize or reduce impacts, but rather to avoid direct take where feasible. (Ex. B, p. 12.) This mitigation measure does not, therefore, address impacts that construction activities would have on nesting birds or the Project's impact on the productive capacity of the Project site post-construction. (Id.) Dr. Smallwood's comments and rebuttals constitute substantial evidence of a fair argument that the Project may have potentially significant biological impacts that the City fails to adequately mitigate. Clearly, an EIR is required to analyze the feasibility, enforceability, and effectiveness of such proposed mitigation measure.
Dr. Smallwood additionally proposes numerous mitigation measures that could vastly reduce the above impacts, such as avoiding construction during nesting season, applying bird- safe window treatments, landscaping measures and many others. (Ex. A, p. 36.) These mitigation measures should be analyzed in an EIR and implemented if feasible. Since there is substantial evidence of a fair argument that the Project may have potentially significant biological impacts, an EIR is required to analyze and mitigate those impacts.
IV. There is Substantial Evidence of a Fair Argument that the Project May Have Potentially Significant Air Quality Impacts.
The Project cannot proceed with an MND because there is substantial evidence of a fair argument that the Project may result in potentially significant air quality impacts. SWAPE reviewed the Project, the IS/MND, and its supporting documents and concluded that the Project may have significant air quality impacts. As a result, the City cannot rely on an MND and must instead prepare an EIR. SWAPE's expert comments and CVs are attached as Exhibit C.
The MND references a health risk assessment ("HRA") to support its conclusion that the Project will not have a significant health risk impact as a result of TAC emissions. The HRA prepared for the MND is incorrect because the HRA fails to evaluate impacts from the Project's construction and operational emissions. Specifically, while the MND does quantify the health risk posed by nearby freeways to the residents of the Project themselves, it fails to acknowledge the toxic air contaminant ("TAC") emissions associated with construction and operation of the Project. (MND, pp. 42-43.) Without conducting a quantitative construction and operational HRA, the MND therefore fails to evaluate the combined lifetime cancer risks of the Project as a whole.
The Maximally Exposed Individual at an Existing Residential Receptor Concentration
Age Group Emissions Source Duration (years) Cancer Risk ug/m3)
3rd Trimester Construction 0.25 0.2207 2.55E-06
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Infant 0-2) Construction 2 0.2207 6.16E-05
Construction 0.24 0.2207 9.88E-07
Operation 13.76 0.0917 2.35E -05
Child (2 - 16) Total 14 2.45E-05
Adult (16 - 30) Operation 14 0.0917 3.68E-06
Lifetime 30 9.23E-05
(Ex. A, p. 7.)
SWAPE performed a screening-level HRA to evaluate potential human health impacts form the construction and operation of the Project. SWAPE used AERSCREEN, the leading screening-level air quality dispersion model. (Ex. A, p. 3-7.) SWAPE calculated that the Project's construction and operation may result in an excess cancer risk of 92.3 per million over a residential lifetime, which exceeds the VCAPCD significance threshold of 10 in one million. (Id., p. 7) SWAPE's conclusions constitute substantial evidence that the Project may have a significant impact on human health, necessitating the preparation of an EIR.
V. There is Substantial Evidence of a Fair Argument that the Project May Have Significant Health Risks from Indoor Air Quality Emissions.
The Project cannot proceed with an MND because there is substantial evidence of a fair argument that the Project may result in potentially significant indoor air quality impacts.
Certified Industrial Hygienist, Francis Offermann, PE, CIH, conducted a review of the Project and relevant documents regarding the Project's indoor air emissions. Mr. Offermann concludes that the Project will expose residents of the Project to significant impacts related to indoor air quality, and in particular, emissions of the cancer-causing chemical formaldehyde. Mr.
Offermann is one of the world's leading experts on indoor air quality and has published extensively on the topic. As discussed below and in Mr. Offermann's comments, the Project's emissions of formaldehyde to the air will result in very significant cancer risks to future residents of the Project's residential units. Mr. Offermann's expert comments and CV are attached as Exhibits D and E.
Mr. Offermann explains that many composite wood products used in building materials and furnishings commonly found in offices, warehouses, residences, hotels, and commercial spaces contain formaldehyde-based glues which off-gas formaldehyde over a long period of time. He states, "The primary source of formaldehyde indoors is composite wood products manufactured with urea-formaldehyde resins, such as plywood, medium density fiberboard, and particleboard. These materials are commonly used in building construction for flooring, August 1, 2024
Comment on IS/MND for Lockwood III Apartments Project
Oxnard, CA
cabinetry, baseboards, window shades, interior doors, and window and door trims." (Ex. D, pp. 2-3.) Notably, the MND includes some discussion of impacts or health risks, but no required mitigations for significant emissions of formaldehyde to air from the Project.
Formaldehyde is a known human carcinogen and is listed by the State as a toxic air contaminant ("TAC"). Mr. Offermann concludes that future residents of the Project may be exposed to a cancer risk from formaldehyde emissions of approximately 120 per million, even assuming all materials are compliant with the California Air Resources Board's formaldehyde airborne toxics control measure. (Ex. D, p. 3.) This exceeds the VCAPCD's CEQA significance threshold for airborne cancer risk of 10 per million. (Id.) When a Project exceeds a duly adopted CEQA significance threshold, as here, this alone establishes a fair argument that the project may have a significant environmental impact and an EIR is required. Indeed, in many instances, such air quality thresholds are the only criteria reviewed and treated as dispositive in evaluating the significance of a project's air quality impacts. (See, e.g. Schenck v. County of Sonoma (2011) 198 Cal.App.4th 949, 960 [County applies Air District's "published CEQA quantitative criteria" and "threshold level of cumulative significance"]; see also Communities for a Better Environment v. California Resources Agency (2002) 103 Cal. App.4th 98, 110-111 ["'A 'threshold of significance' for a given environmental effect is simply that level at which the lead agency finds the effects of the project to be significant"].)
Mr. Offermann states that there is a fair argument that future residents will be exposed to a cancer risk from formaldehyde of approximately 120 per million, even assuming all materials are compliant with the California Air Resources Board's ("CARB") formaldehyde airborne toxics control measure. (Ex. D, pp. 3-4.) This is more than 12 times VCAPCD's significance threshold of 10 per million.
In response to Mr. Offermann's comments, the City claims that all building materials will comply with applicable state and federal laws pertaining to formaldehyde emission standards, dismissing the potential for health impacts. (Response to Comments, p. 3-166.) However, as Mr.
Offermann explains, "[e]ven composite wood products manufactured with CARB certified ultra- low emitting formaldehyde (ULEF) resins do not insure that the indoor air will have concentrations of formaldehyde [that] meet the OEHHA cancer risks that substantially exceed 10 per million." (Ex. C, p. 6.) Mr. Offerman's comments do not dispute the nature of whether the Project will comply with state and federal law, but rather emphasize that even the use of products cannot guarantee emissions will fall below significance. (Id.) The City also claims that Mr. Offermann's comments are speculative. But Mr. Offermann conducted his analysis based on the information provided by the Applicant and City. The City cannot hide behind its own failure to gather relevant data. Gentry v. City of Murrieta, 36 Cal.
App. 4th 1359, 1378-79. The duty to investigate potential environmental impacts rests with the City. (Id.) "If [a] local agency has failed to study an area of possible environmental impact, a fair argument may be based on the limited facts in the record. Deficiencies in the record may actually August 1, 2024
Comment on IS/MND for Lockwood Ill Apartments Project
Oxnard, CA
enlarge the scope of fair argument by lending a logical plausibility to a wider range of inferences." Sundstrom v. County of Mendocino (1988) 202 Cal.App. 3d 296, 311.
Furthermore, Mr. Offermann's conclusion that the Project may have a potentially significant air quality is corroborated by the MND's Air Quality analysis. Specifically, the City admits that the MEIR "from predicted freeway emissions without compliance with the City of Oxnard Code of Ordinance Section 16-420J could be at 13.6 in one million which would exceed the VCAPCD cancer risk significance threshold of 10 in one million." (Response to Comments, p. 3-197.) As such, the Air Quality analysis supports Mr. Offermann's findings, and, as explained in detail below, more adequate enforcement mechanisms must be in place in order to ensure that the proposed mitigation measure is implemented.
The failure to address the Project's formaldehyde emissions is 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"). At issue in CBIA was whether the Air District could enact CEQA guidelines that advised lead agencies that they must analyze the impacts of adjacent environmental conditions on a project. 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 800-801.) However, to the extent a project may exacerbate existing adverse environmental conditions at or near a project site, those would still have to be considered pursuant to CEQA. (Id. at 801 ["CEQA calls upon an agency to evaluate existing conditions in order to assess whether a project could exacerbate hazards that are already present"].) In so holding, the Court expressly held that CEQA's statutory language required 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 800 [emph. added].)
The carcinogenic formaldehyde emissions identified by Mr. Offermann are not an existing environmental condition. Those emissions to the air will be from the Project. Tenants will be users of the Project. Currently, there is presumably little if any formaldehyde emissions at the site. Once the project is built, emissions will begin at levels that pose significant health risks.
Rather than excusing the City from addressing the impacts of carcinogens emitted into the indoor air from the project, the Supreme Court in CBIA expressly finds that this type of effect by the project on the environment and a "project's users and residents" must be addressed in the CEQA process.
The Supreme Court's reasoning is well-grounded in CEQA's statutory language. CEQA expressly includes a project's effects on human beings as an effect on the environment that must be addressed in 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, directly or indirectly.'" (CBIA, 62 Cal.4th at 800 [emph. in original].) 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., 88 21000, subds. (b), (c), (d), (g), 21001, subds. (b), (d).) It goes without saying that the future residents of the Project are August 1, 2024
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Oxnard, CA
human beings and the health and safety of those residents and workers is as important to CEQA's safeguards as nearby residents currently living near the project site.
Because Mr. Offermann's expert comments constitute substantial evidence of a fair argument that the Project may have a significant health impact on future users of the Project, an EIR must be prepared to disclose and mitigate those impacts.
VL. Installation of Filters to Reduce Significant Impacts to a Level Below Significance Constitutes a Mitigation Measure. Use of this Mitigation Measure Must be Reflected in the Mitigation Monitoring and Reporting Program.
The City fails to include the filter mitigation measure in the Project MND's mitigation monitoring and reporting program ("MMRP"). The MND concedes that high efficiency minimum efficiency reporting value (MER V) filters of MERV 14 or greater will be installed throughout the Project, thereby bringing the cancer risk at the maximum exposed receptor to a level below significance thresholds, at 5.18 in one million. (MND, p. 37) Both SAFER and VCAPCD have commented that such integration of the filters is a mitigation measure that must be reflected accurately in the MND.
In response, the City insists that the integration of filters is a project design feature and not a mitigation measure, thereby failing to include it in the MMRP. This is violative of CEQA for a couple reasons. First, installation of air filters is a mitigation measure. CEQA provides that "the discussion of mitigation measures shall distinguish between the measures which are proposed... to be included in the project and other measures proposed by the lead, responsible or trustee agency... if required as conditions of approving the project." (CEQA Guidelines § 15126.4(a)(1)(A).) As applied, the Applicant does not have discretion on installing the filters - the Project must abide by the City's municipal code by adopting Section 16-420J as a condition of approval. (Response to Comments, p. 3-166.) Furthermore, the City admits that without the installation of filters, the Project's impacts will exceed significant thresholds set by VCAPCD. (Id.) Therefore, the installation of filters as mitigation measures should not be read as a suggestion, but rather a mandate to reduce impacts below significance.
Additionally, CEQA requires that all mitigation measures must be included in the MMRP. A lead agency may impose conditions in a negative declaration that require monitoring of the permitted activities to ensure that potential impacts will not occur. Such conditions are acceptable if the actions required to avoid or minimize the potential impacts are prescribed in the monitoring and enforcement program. (Running Fence Corp. v. Superior Court (1975) 51 Cal.App.3d 400, 420 (emph. added).) By failing to include the use of filters to reduce the Project's air quality impacts in the MMRP, the MND is deficient.
As such, the proposed installation of high-quality MERV filters must be reflected as a mitigation measure in the MMRP. Unless and until this is included, the MND violates CEQA.
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Comment on IS/MND for Lockwood III Apartments Project
Oxnard, CA
VII. There is Substantial Evidence of a Fair Argument that the Project May Have Significant Noise Impacts that were Inadequately Addressed.
The Project's determination of less-than-significant noise and vibration impacts remains unsubstantiated and there is substantial evidence of a fair argument that the Project may have potentially significant noise and vibration impacts that the City failed to adequately analyze and mitigate.
SAFER's independent experts at Wilson Ihrig reviewed the Project and related documents, including the Noise Study and Response to Comments, and concluded that the MND's noise report remains unsubstantiated and there may still be potentially significant noise impacts. Wilson Ihrig is an expert and renowned firm within the field of noise and vibration consulting. For this reason, the MND is improper and the City should instead prepare an EIR Wilson Ihrig's comments and CV are attached as Exhibit F and G. a. There is Substantial Evidence of a Fair Argument that the Project May Have Potentially Significant Impacts on Nearby University Campus.
The MND fails to sufficiently review or completely omits critical analyses related to the Project's potentially significant noise impacts. CEQA prohibits the use of an MND where there is substantial evidence of a fair argument that the Project may have potentially significant environmental impacts. The Noise Study fails to evaluate the Project's construction-related vibration impacts on off-site sensitive receptors. Wilson Ihrig underlines that the FTA guidance relied on for the Noise Study explains that "[b]uildings founded on the soil near the construction site [can] respond to these [construction] vibrations with ... slight damage at the highest [vibration] levels." (Ex. F, p. 3.)
While the MND acknowledged the presence of multiple sensitive receptors near the Project site, including medical buildings, senior living facilities, and a university campus, there is a reasonable possibility that the Project's construction vibration may adversely affect such buildings. (Ex. F, p. 3.) However, the MND fails to analyze these impacts. For example, the MND may have underreported potentially significant impacts on the nearby California Lutheran University ("CLU"'). While the MND applies a 90 VdB threshold for "Workshops" for the university campus, the CLU building includes "classrooms, office space, clinical psychology research labs and student study space."4 As Wilson Ihrig notes, office spaces have an 84 VdB threshold. (Ex. G, p. 3.) Because the MND's predicted vibration level is 87 VdB for CLU, this will exceed the office threshold, therefore having a potentially significant impact on CLU. The omission of this construction vibration effects on sensitive receptors under-analyzes the Project's impacts, and Wilson Ihrig asserts that it should studied in an EIR. (Id.) b. The MND Fails to Accurately Analyze the Project's Noise Impacts.
The MND's Noise Study potentially underestimates the Project's noise impacts because it erroneously utilizes a less stringent threshold assessment. In particular, the Noise Study relies 4 https://www.callutheran.edu/about/oxnard-center.html.
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on a threshold adopted from the FTA Construction Noise Handbook, but "the FTA advises assuming a usage factor of 1 when using a general assessment", which this Project's Noise Study does. Reviewing the Noise Study's assessment, Wilson Ihrig underlines that such approach "significantly underestimates the potential impact of construction noise, especially since the modeled noise for the Site Preparation and Grading phases are 7 dBA over the 80 dBA threshold." (Ex. F, p. 3.) In fact, Wilson Ihrig predicts that the Noise Study's general assessment underestimates the noise impacts by seven decibels across the board. (Id.) The MND's Noise Study, therefore, fails to capture the true extent of the Project's noise impacts, and must instead review and assess these issues in an EIR.
In response, the City asserts that given that the Project is currently in the planning stage, the noise analysis was appropriately done. (Response to Comments, p. 3-170.) However, Wilson Ihrig maintains that the calculations are incorrect and inconsistent with the FTA guidelines. For example, Wilson Ihrig points to the City's unsupported claims that the Project's construction equipment may be fitted with noise-reducing devices or that equipment can be modified or redesigned to reduce noise impacts, neither of which are supported by substantial evidence. (Ex.
G, p. 2.) However, Wilson Ihrig explains that equipping equipment with mufflers, as the MND suggests, is a decades-old practice and that such noise reductions may have already been accounted for in the noise analysis. (Id.)
c. The MND's Use of the City's Municipal Code to Analyze Operational Noise Impacts is Unsupported by Substantial Evidence.
The MND's analysis of operational noise impacts is incomplete because it fails to properly analyze cumulative noise impacts. California courts have clearly held that "the lead agency should consider both the increase in noise level and the absolute noise level associated with a project". (Keep Our Mountains Quiet v. County of Santa Clara (2015) 236 Cal.App.4th 714, 733 (emph. added) ("Keep Our Mountains Quiet"); see King and Gardiner Farms, LLC v.
County of Kern (2020) 45 Cal.App.5th 814, 894 (citing Keep Our Mountains Quiet).) The courts have held that reliance on a maximum noise level as the sole threshold of significance for noise impacts violates CEQA because it fails to consider whether the magnitude of changes in noise levels is significant. (King & Gardiner Farms, LLC, 45 Cal.App.5th at 865.) In Keep our Mountains Quiet, neighbors of a wedding venue sued over the County of Santa Clara's failure to prepare an EIR for a proposed project to allow use permits for wedding and other party events at a residential property abutting an open space preserve. (See, Keep our Mountains Quiet.) Neighbors and their noise expert contended that previous events at the facility had caused significant noise impacts that reverberated in neighbors' homes and disrupted the use and enjoyment of their property. (Id., p. 724.)
Like the City's noise threshold for this Project, the MND in Keep Our Mountains Quiet relied on the noise standards set forth in the County's noise ordinance as its thresholds for significant noise exposure from the project, deeming any increase to be insignificant so long as the absolute noise level did not exceed those standards. (Id. at 732.) The Court examined a long line of CEQA cases which have uniformly held that conformity with land use regulations is not August 1, 2024
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Oxnard, CA
conclusive of whether a project has significant noise impacts in holding that the County's reliance on the project's compliance with noise regulations did not constitute substantial evidence supporting the County's finding of no significant impacts. (Id., citing Citizens for Responsible & Open Government v. City of Grand Terrace (2008) 160 Cal.App.4th 1323, 1338; Oro Fino Gold Mining Corp. v. County of El Dorado (1990) 225 Cal.App.3d 872, 881-882; Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359, 1416 (project's effects can be significant even if "they are not greater than those deemed acceptable in a general plan"); Environmental Planning & Information Council v. County of El Dorado (1982) 131 Cal.App.3d 350, 354, ("CEQA nowhere calls for evaluation of the impacts of a proposed project on an existing general plan").
In King and Gardiner Farms, LLC v. County of Kern, the Court of Appeal cited Keep Our Mountains Quiet and decisions cited therein when it rejected the use of a single "absolute noise level" threshold of significance (construction and operational noise impacts were only deemed significant if they exceeded 65 dBA CNEL) on the grounds that the sole use of such a threshold fails to consider the magnitude or severity of increases in noise levels attributable to the project in different environments. The Court explained that the lead agency failed to "refer to evidence showing why the magnitude of an increase was irrelevant in determining the significance of a change in noise." (King and Gardiner Farms, LLC, supra, 45 Cal.App.5th 814, 894.)
In response to SAFER's earlier claim that the MND failed to analyze the operational noise impacts on nearby sensitive receptors, the City amended the MND to include an analysis for HVAC noise. The MND concludes that "the noise levels generated by these equipment types would not be substantially greater than those generated by the current HVAC equipment serving the existing buildings in the Project vicinity." (MND, p. 90.) This analysis is insufficient and precludes a comprehensive analysis of cumulative impacts because mere adherence to the city's noise ordinance is not substantial evidence of a finding that impacts may be less than significant.
Here, in utilizing the Oxnard Municipal Code as the only applicable noise threshold, the MND violates CEQA because the City did not analyze the cumulative increase in noise levels associated with the Project. In support of the MND's conclusion that the Project's operational noise will have less-than-significant impacts on sensitive receptors, the MND provides that "because the noise levels generated by the HVAC equipment serving the Proposed Project would be designed to not exceed the ambient noise levels allowable by the City of Oxnard Municipal Code, a substantial permanent increase in noise levels would not occur at the nearby sensitive receptors." (MND, p. 90.) This is incorrect because as Wilson Ihrig notes, "It]he result is circular - the source levels would always be low enough using this method to ensure there is no impact, regardless of how unrealistic the source levels may be." (Ex. G, p. 2.) While the City has discretion to apply a significance threshold, it must evaluate both the increase in noise level and the absolute noise level associated with the Project. (Keep Our Mountains Quiet v. Cty. of Santa Clara (2015) 236 CA4th 714, 733.) The amended MND does not do so. Because the City relies on its own noise levels without taking into account the absolute and cumulative noise impacts, its conclusion that the Project's noise impacts will not exceed significance thresholds is not supported by substantial evidence.
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Comment on IS/MND for Lockwood Ill Apartments Project
Oxnard. CA
There is at least a fair argument that the Project may have significant noise impacts.
Therefore, the MND is improper and the City must instead prepare and circulate an EIR for review.
CONCLUSION
SAFER has submitted substantial evidence of a fair argument that the Project may have potentially significant environmental effects, and the MND prepared for the Project does not adequately analyze or mitigated the potentially significant environmental impacts stemming from the Project. Furthermore, the Project's failure to designate the minimum affordable housing units clearly violates the City's municipal code to grant the zone change. For the foregoing reasons, SAFER requests that the Planning Commission refrain from taking any action on the Project a his time. Instead, the City must supply the much-needed affordable housing required by the City's zoning code and must and prepare an EIR to analyze and mitigate the Project's potentially significant environmental impacts prior to Project approval. Thank you.
Sincerely,
Marjan R. Abubo
LOZEAU DRURY LLP
OXNARD
Chaparro, Rose <[email protected]>
Fwd: City Council Meeting Comment Submission - Lockwood Ill Apartments Project (PH-1) 4 messages
Marjan Kris Abubo <[email protected]> Tue, Sep 17, 2024 at 8:24 PM To: [email protected], [email protected]
Good evening,
I am circling back on this submitted comment letter that we sent out earlier this morning. Please see attached comment letter.
My best,
Marjan R. Abubo
Lozeau | Drury LLP
1939 Harrison St., Suite 150
Oakland, CA 94612
Office: 510.836.4200
Direct: 510.607.8238
[email protected]
- Forwarded message
From: Marlan Kris Abubo <[email protected]>
Date: Tue, Sep 17, 2024 at 10:39 AM
Subject: City Councll Meeting Comment Submission - Lockwood Ill Apartments Project (PH-1) To: <[email protected]>
Cc: Hayley Uno <[email protected]>, Richard Drury <[email protected]> Good morning,
On behalf of the Supporters Alliance for Environmental Responsibility, please see the attached comment letter addressed to the City Council for the Lockwood Ill Apartments Project. This Project will be before the City Council this evening as Item Number 1 under Public Hearings. I have received the Zoom instructions for the public hearing and will be in attendance remotely. Thank you for coordinating logistics on this matter.
At your earliest convenience, please confirm receipt of this email and attachment. Thank you.
My best,
Marjan R. Abubo
Lozeau | Drury LLP
1939 Harrison St., Suite 150
Oakland, CA 94612
Office: 510.836.4200
Direct: 510.607.8238
[email protected]
[2 2024.09.17 Final CC Comment Letter - Lockwood III.pdf 495K
Chaparro, Rose <[email protected]> Tue, Sep 17, 2024 at 8:38 PM Cc: Stephen Fischer <[email protected]>, Alexander Nguyen < [email protected]>, "Golden, Ashley" < [email protected]>, "Pengilley, Jeff" <[email protected]>, Joe Pearson Il <[email protected]>, Rob Ruben <[email protected]> cc: John Zaragoza ‹[email protected]>, "MacDonald, Bryan" <[email protected]>, Gabriela Basua < [email protected]>, Oscar Madriga [email protected]>, Bert Perello <[email protected]>, Gabe Teran <[email protected]>, "Arthur Valenzuela Jr." < arthur. [email protected] Dear Council,
Please find attached public comment submitted for tonight's public hearing item M.1 on the agenda. this. Thank yos notreceived by the ily Clarks olic (iylerk@oxardorg alr today. I was received during the meting at 8:24 p.m. I am inciding our IT Director to check into Rose Chaparro, CMC
City Clerk
City of Oxnard
300 West Thint Street Fourth Floor
Oxnard, CA 93030
Main Line: (805) 385-7803
cos [email protected]
OXNARD
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# 2024.09.17 Final CC Comment Letter - Lockwood I. pff
495K
Staszewski, Jerome <[email protected]>
<[email protected]>
Hi Rose,
After some research, the source of this problem was likely caused by a previous email message sent from [email protected] on February 28, 2024 which was manually classified message classification, Google is now assuming that future email messages [email protected] destined for the rose. [email protected] mailbox Is SPAM.
To resolve this issue, both the email messages from @lozeaudrury.com in your SPAM folder should be reclassified as not SPAM. Once this is complete, future email messages should not b If you would like some assistance making these changes, please reach out to the Service Desk at 805-385-7777.
Best Regards,
Jerome Staszewski
Service Desk Manager
Information Technology Department
City of Oxnard
(805) 203-3996
[email protected]
On Wed, Sep 18, 2024 at 1:00 PM Ruben, Rob < [email protected]> wrote:
So the Issue looks like that it went to Rose's spam account. n Wed, Sep 18, 2024, 11:04 AM Staszewski, Jerome <[email protected]> wrot reetings, I am seeing the email being received at 10:39 AM on 9/17/24 and being distributed to the following email account [email protected] (Status Inbox, Unread)
[email protected] (Status Spam, Unread)
[email protected] (Status Inbox)
I have also attached a screen capture of the report for your reference.
City Council Meeting Comment Submission - Lockw <CACk.ail.com> [email protected] 2024-09-17T10:39:59-07:00 [email protected] cityc City Council Meeting Comment Submission - Lockw «CACkail.com> [email protected] 2024-09-17T10:39:59-07:00 [email protected] cityc City Council Meeting Comment Submission - Lockw <CACk..ail.com> [email protected] 2024-09-17T1039:59-07:00 [email protected] cityc Jerome Staszewski
Service Desk Manager
Information Technology Department
City of Oxnard
805) 203-3996
[email protected]
On Tue, Sep 17, 2024 at 8:45 PM Ruben, Rob <[email protected]> wrote:
Jerome,
Can you check and confirm whether or not this email was received by [email protected] at 10:39am today.
Thank you,
Rob
(Quoted text hidden
Chaparro, Rose <[email protected]> Ce: Stephen Fisher s change road org», Alexander guyen <alexander nguyen @xnard. org, "Golden, Ashley <[email protected], "Pengily, or 18. 2024 at 246 PN [email protected]>, Joe Pearson I <Joe. [email protected]>, Rob Ruben <[email protected]> Good afternoon Council,
As a follow-up to last night's Councll meeting, please see response from IT staff regarding the email issue concerning not receiving an email containing written comments for Item M. ublic hearing. The email sent to [email protected] went to spam. The second email sent during the meeting was received since it was also sent to my direct email address [email protected].
The written comments received will be included in the meeting records as well as this email. Thank you. (Quoted text hidden)