Memorandum — San Jose City Council, December 13, 2022 (part 2 of 2)

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The project site is located in Santa Clara Valley, an alluvial basin that lies between the Santa Cruz Mountains to the southwest and the Diablo Range to the northeast. Santa Clara Valley bedrock consists of Franciscan Complex and Cretaceous-age marine sediment. This bedrock is overlain by Santa Clara Formation sediments, which consist of a complex distribution of sand, silt, and clay lenses.

The project site is located within the seismically active San Francisco Bay Area. Santa Clara Valley is located between the active San Andreas Fault to the west, and the active Hayward and Calaveras faults to the east. Surface fault rupture tends to occur along existing fault traces. The California Geological Survey (formerly Division of Mines and Geology) has produced maps showing Alquist -Priolo Earthquake Fault Zones along faults that pose a potential surface faulting hazard. No Alquist -Priolo zones are mapped in the vicinity of the project.
19 The site is located within an area zoned by the State of California as having potential for seismically induced liquefaction hazards.20 However, the site is not located within an area zoned in the Santa Clara County Geologic Hazard Zone maps as a Liquefaction Hazard Zone. 21 Liquefaction is a phenomenon in which the strength and stiffness of a soil is reduced by seismic shaking or other rapid loading.

Liquefied soil can also settle.

Impacts and Mitigation

Thresholds per CEQA Checklist

7. GEOLOGY AND SOILS. Would the project:
a) Directly or indirectly cause potential
substantial adverse effects, including the risk
of loss, injury, or death involving:

i) Rupture of a known earthquake fault, as
delineated on the most recent Alquist-Priolo
Earthquake Fault Zoning Map issued by the
State Geologist for the area or based on other
substantial evidence of a known fault? Refer
to Division of Mines and Geology Special
Publication 42.

X 1, 2
ii) Strong seismic ground shaking? X 1, 2
iii) Seismic- related ground failure, including
liquefaction? X 1, 2
iv) Landslides? X 1, 2
b) Result in substantial soil erosion or the loss
of topsoil? X 1, 2

19 California Geological Service, Earthquake Zones of Required Investigation San Jose West Quadrangle, 2002. 20 California Geological Service, EQ Zapp: California Earthquake Hazards Zone Application, 2019. 21 Santa Clara County, Santa Clara County Geologic Hazard Zones, 2012.

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ENVIRONMENTAL IMPACTS
New
Potentially
Significant
Impact
New
Less Than
Significant
With
Mitigation
Incorporated
New
Less Than
Significant
Impact
Same
Impact as
Approved
Project
Less
Impact
than
Approved
Project
Checklist
Source(s)
c) Be located on a geologic unit or soil that is
unstable, or that would become unstable as a
result of the project, and potentially result in
on- or off-site landslide, lateral spreading,
subsidence, liquefaction or collapse?
X 1, 2
d) Be located on expansive soil, as defined in
Table 18-1-B of the Uniform Building Code
(1994), creating substantial direct or indirect
risks to life or property?
X 1, 2
e) Have soils incapable of adequately
supporting the use of septic tanks or
alternative waste water disposal systems
where sewers are not available for the
disposal of waste water?
X 1, 2
f) Directly or indirectly destroy a unique
paleontological resource or site or unique
geologic feature?
X 1, 2, 3

Explanation

As discussed below, the proposed project would not result in a new or greater impact on geology and soils than was previously disclosed in the Downtown Strategy 2040 FEIR.

ai) Same Impact as Approved Project. The site is not located within a State of California Earthquake Fault Hazard Zone and no known active faults cross the site. The risk of ground rupture within the site is considered low. The project site is not mapped within an Alquist - Priolo Earthquake Fault Zone. Furthermore, the project will be designed and developed in accordance with the California Building Code guidelines to avoid or minimize potential direct or indirect damage from seismic shaking on the project site as set forth in the standard permit conditions below.

Standard Permit Conditions

• To avoid or minimize potential damage from seismic shaking, the project shall be constructed using standard engineering and seismic safety design techniques. Building design and construction at the site shall be completed in conformance with the recommendations of an approved geotechnical investigation. The report shall be reviewed and approved by the City of San José Department of Public Works as part of the building permit review and issuance process. The buildings shall meet the requirements of applicable Building and Fire Codes as adopted or updated by the City. The project shall be designed to withstand soil hazards identified on the site and the project shall be designed to reduce the risk to life or property on site and off site to the extent feasible and in compliance with the Building Code.

• All excavation and grading work shall be scheduled in dry weather months or construction sites shall be weatherized.

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• Stockpiles and excavated soils shall be covered with secured tarps or plastic sheeting.

• Ditches shall be installed to divert runoff around excavations and graded areas if necessary.

• The project shall be constructed in accordance with the standard engineering practices in the California Building Code, as adopted by the City of San José. A grading permit from the San José Department of Public Works shall be obtained prior to the issuance of a Public Works clearance. These standard practices would ensure that the future building on the site is designed to properly account for soils-related hazards on the site.

Implementation of the standard permit conditions identified above would assure that the project has the same impact as the approved project as related to seismicity.

aii) Same Impact as Approved Project. Due to its location in a seismically active region, the proposed building and associated structures would likely be subject to strong seismic ground shaking during their design life in the event of a major earthquake on any of the region’s active faults. This could pose a risk to proposed structures and infrastructure. Earthquake faults in the region, specifically the San Andreas, Calaveras, and Hayward faults are capable of generating earthquakes larger than 7.0 in magnitude. Seismic impacts would be minimized by implementation of standard engineering and construction techniques in compliance with the requirements of the California and Uniform Building Codes for Seismic Zone 4. The project will be designed and constructed in accordance with a design-level geotechnical investigation as a standard permit condition discussed in ai.) above.

aiii) Same Impact as Approved Project. As described above, the project site may be subject to strong ground shaking in the event of a major earthquake. The site is located within an area zoned by the State of California as having potential for seismically induced liquefaction hazards. However, the site is not located within an area zoned in the Santa Clara County Geologic Hazard Zone maps as a Liquefaction Hazard Zone. Nevertheless, impacts associated with seismic and liquefaction hazards would be minimized by applying appropriate engineering and construction techniques. A geotechnical analysis would be prepared to provide recommendations to minimize these hazards as presented in the standard permit conditions in ai.) above.

aiv) Same Impact as Approved Project . The project site is essentially flat and would not be subject to landslides.

b) Same Impact as Approved Project. Development of the project would involve the excavation of approximately 6,800 cubic yards (CY) of material, to be exported from the site. This could result in a temporary increase in erosion. The project will implement the standard measures identified in Section J. Hydrology and Water Quality section of this Initial Study as well as the standard permit conditions discussed in explanation ai).

c) Same Impact as Approved Project. The project may contain soil and geologic hazards that could result in lateral spreading, subsidence, or liquefaction, which could damage proposed structures. Impacts associated with these soil and geotechnical hazards would be minimized by applying appropriate engineering and construction techniques. A geotechnical analysis would Eterna Tower Mixed-Use Development Chapter 3
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be prepared to provide recommendations to minimize these hazards as presented in the standard permit conditions in ai.) above.

d) Same Impact as Approved Project . The project may contain expansive soils, which could damage proposed structures on the site. Impacts associated with expansive soils or other soil hazards would be minimized by applying appropriate engineering and construction techniques.

A geotechnical analysis would be prepared to provide recommendations to minimize these hazards as described in the standard permit condition for ai) above. This would reduce any new potentially significant direct or indirect geotechnical impacts to less than significant.

e) Same Impact as Approved Project . The project does not include any septic systems. The proposed project would connect to the City’s existing sanitary sewer system.

f) Same Impact as Approved Project . The project site is located in an area mapped as “high sensitivity at depth” in the 2040 General Plan EIR.
22 The project proposes grading that could
potentially disturb paleontological resources. Consistent with General Plan Policy ER-10.3, the following standard permit condition would be implemented by the project to avoid or minimize impacts to paleontological resources during construction. No other unique geological features are found on this developed infill site.

Standard Permit Condition

• If vertebrate fossils are discovered during construction, all work on the site shall stop immediately, the Director of Planning or Director’s designee of the Department of Planning, Building and Code Enforcement (PBCE) shall be notified, and a qualified professional paleontologist shall assess the nature and importance of the find and recommend appropriate treatment. Treatment may include, but is not limited to, preparation and recovery of fossil materials so that they can be housed in an appropriate museum or university collection and may also include preparation of a report for publication describing the finds. The project applicant shall be responsible for implementing the recommendations of the qualified paleontologist. A report of all findings shall be submitted to the Director of Planning or the Director’s designee.

Geology and Soils Chapter Conclusion

The Downtown Strategy 2040 EIR identified potential geologic and geotechnical hazards and identified minimizing measures for these impacts. The project would be designed and constructed in accordance with a design-level geotechnical investigation consistent with the mitigation identified in the Downtown Strategy 2040 EIR. The proposed project would not result in new or more significant geology and soils impacts than identified in the Downtown Strategy 2040 EIR.

The project is located within the approved, single-bore, west option of the BART Extension Project.

The SEIS/SEIR for the BART Extension Project identified potential construction geology and soils impacts and mitigation related to liquefaction (GEO-CNST-A: Incorporate Design Specifications to Minimize Effects from Liquefaction Hazards ), surface settlement (GEO -CNST-B through GEO- CNST-F) stability (GEO -CNST-F through GEO-CNST-G), expansive soils ( GEO-CNST-H:

22 Figure 3.11-1 “Paleontologic Sensitivity of City of San Jose Geologic Units,” from the Draft Program Environmental Impact Report (PEIR) for the Envision San José 2040 General Plan, June 2011.

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Incorporate Design Specifications to Minimize Effects from Expansive Soils ) and paleontological resources ( GEO-CNST-I: Stop Construction if Paleontological Resources Are Discovered and Determine Appropriate Action). In addition, an operational impact and mitigation was identified related to liquefaction (GEO-CNST-A: Incorporate Design Specifications to Minimize Effects from Liquefaction Hazards). All impacts to geology and soils identified in the SEIS/SEIR were reduced to less than significant with mitigation.

As described above, the proposed project resulted in less than significant impact through implementation of standard permit conditions. As a result, the proposed project would not result in new significant impacts to geology and soils, compared to what was analyzed in the SEIS/SEIR. The project would have a less than significant impact with respect to geology and soils and would not result in new or more severe geological impacts than identified in the SEIS/SEIR for the BART Extension Project.

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H. GREENHOUSE GAS EMISSIONS

Regulatory Framework

Federal

The Federal Clean Air Act (CAA), first passed in 1970, is the overarching federal-level law that, as of 2007 via the U.S. Supreme court decision in Massachusetts v. EPA, enables the U.S. EPA to provide regulations of key GHG emissions sources (mobile emissions), established a mandatory emissions reporting program for large stationary emitters, and implementation of vehicle fuel efficiency standards.

State

Assembly Bill 32 – California Global Warming Solutions Act

Assembly Bill (AB) 32, the Global Warming Solutions Act of 2006, codifies the State of California’s GHG emissions target by directing CARB to reduce the state’s global warming emissions to 1990 levels by 2020. AB 32 was signed and passed into law by Governor Schwarzenegger on September 27, 2006. Since that time, the CARB, the California Energy Commission (CEC ), the California Public Utilities Commission (CPUC), and the Building Standards Commission have all been developing regulations that will help meet the goals of AB 32 and Executive Order S-3-05. 23 A Scoping Plan for AB 32 was adopted by CARB in December 2008. It contains the State of California’s main strategies to reduce GHGs from business as usual (BAU) emissions projected in 2020 back down to 1990 levels. BAU is the projected emissions in 2020, including increases in emissions caused by growth, without any GHG reduction measures. The Scoping Plan has a range of GHG reduction actions, including direct regulations, alternative compliance mechanisms, monetary and non- monetary incentives, voluntary actions, and market-based mechanisms such as a cap-and-trade system.

It required CARB and other state agencies to develop and adopt regulations and other initiatives reducing GHGs by 2012.

As directed by AB 32, CARB has also approved a statewide GHG emissions limit. On December 6, 2007, CARB staff resolved an amount of 427 MMT of CO
2e as the total statewide GHG 1990 emissions
level and 2020 emissions limit. The limit is a cumulative statewide limit, not a sector-or facility-specific limit. CARB updated the future 2020 BAU annual emissions forecast, in light of the economic downturn, to 545 MMT of CO
2e. Two GHG emissions reduction measures currently enacted that were not previously included in the 2008 Scoping Plan baseline inventory were included, further reducing the baseline inventory to 507 MMT of CO
2e. Thus, an estimated reduction of 80 MMT of CO 2e is
necessary to reduce statewide emissions to meet the AB 32 target by 2020.

Senate Bill 1368

Senate Bill (SB) 1368 is the companion bill of AB 32 and was signed by Governor Schwarzenegger in September 2006. SB 1368 required the CPUC to establish a greenhouse gas emission performance standard. Therefore, on January 25, 2007, the CPUC adopted an interim GHG Emissions Performance Standard in an effort to help mitigate climate change. The Emissions Performance Standard is a

23 Note that AB 197 was adopted in September 2016 to provide more legislative oversight of CARB.

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facility-based emissions standard requiring that all new long-term commitments for baseload generation to serve California consumers be with power plants that have emissions no greater than a combined cycle gas turbine plant. That level is established at 1,100 pounds of CO2 per megawatt-hour. "New long-term commitment" refers to new plant investments (new construction), new or renewal contracts with a term of five years or more, or major investments by the utility in its existing baseload power plants. In addition, the CEC established a similar standard for local publicly owned utilities that cannot exceed the greenhouse gas emission rate from a baseload combined-cycle natural gas fired plant. On July 29, 2007, the Office of Administrative Law disapproved the CEC’s proposed Greenhouse Gases Emission Performance Standard rulemaking action and subsequently, the CEC revised the proposed regulations. SB 1368 further requires that all electricity provided to California, including imported electricity, must be generated from plants that meet the standards set by the CPUC and CEC.

Senate Bill 32 – California Global Warming Solutions Act of 2006

In September 2015, the California Legislature passed SB 350 (de Leon 2015), which increases the State’s Renewables Portfolio Standard (RPS) for content of electrical generation from the 33 percent target for 2020 to a 50 percent renewables target by 2030.

Senate Bill 375 – California’s Regional Transportation and Land Use Planning Efforts

SB 375, signed in August 2008, requires sustainable communit y strategies (SCS) to be included in regional transportation plans (RTPs) to reduce emissions of GHGs. The MTC and ABAG adopted an SCS in July 2013 that meets GHG reduction targets. The Plan Bay Area is the SCS document for the Bay Area, which is a long -range plan that addresses climate protection, housing, healthy and safe communities, open space and agricultural preservation, equitable access, economic vitality, and transportation system effectiveness within the San Francisco Bay region (MTC 2013). The document is updated every four years so the MTC and ABAG are currently developing the Plan Bay Area 2040.

Executive Order S-03-05

On June 1, 2005 Governor Schwarzenegger signed Executive Order S -03-05, the purpose of which was to implement requirements for the California Environmental Protection Agency (EPA) to provide ongoing reporting on a biennial basis to the State Legislature and Governor’s Office on how global warming is affecting the State. Required areas of impact reporting include public health, water supply, agriculture, coastline, and forestry. The EPA secretary is required to prepare and report on ongoing and upcoming mitigation designed to counteract these impacts.

Executive Order B-30-15

On April 15, 2015 Governor Brown signed Executive Order B-30-15, the purpose of which is to establish a GHG reduction of 40 percent below 1990 levels by 2030. The Executive Order is intended to help the State work towards a further emissions reduction target of 80 percent below 1990 levels by the year 2050. The order directed state agencies to prepare for climate change impacts through prioritization of adaptation actions to reduce GHG emissions, preparation for uncertain climate impacts through implementation of flexible approaches, protection of vulnerable populations, and prioritization of natural infrastructure approaches.

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Executive Order B-55-18 and SB 100 – 100 Percent Clean Energy Act of 2018

On September 10, 2018 Governor Brown signed both SB 100 – 100 Percent Clean Energy Act of 2018 and Executive Order B-55-18 to Achieve Carbon Neutrality. SB 100 sets California on course to achieving carbon-free emissions from the electric power production sector by 2045. SB100 also increases the required emissions reduction generated by retail sales to 60% by 2030, an increase in 10% compared to previous goals. B-55-18 establishes a new goal of achieving statewide “carbon neutrality as early as possible and no later than 2045, and to achieve and maintain net negative emissions thereafter.”

Regional and Local

Bay Area Air Quality Management District

The BAAQMD is primarily responsible for ensuring that the federal and state ambient air quality standards for criteria pollutants are attained and maintained in the Bay Area. The BAAQMD’s May 2017 CEQA Air Quality Guidelines update the 2010 CEQA Air Quality Guidelines, addressing the California Supreme Court’s 2015 opinion in the California Building Industry Association vs. Bay Area Air Quality Management District court case.

In an effort to attain and maintain federal and state ambient air quality standards, the BAAQMD establishes thresholds of significance for construction and operational period emissions for criteria pollutants and their precursors (see Table 2).

2017 Bay Area Clean Air Plan

The BAAQMD, along with other regional agencies such as the Association of Bay Area Governments (ABAG) and the Metropolitan Transportation Commission (MTC), develops plans to reduce air pollutant emissions. The most recent clean air plan is t he Bay Area 2017 Clean Air Plan: Spare the Air, Cool the Climate (2017 CAP), which was adopted by BAAQMD in April 2017. This is an update to the 2010 CAP, and centers on protecting public health and climate. The 2017 CAP identifies a broad range of control measures. These control measures include specific actions to reduce emissions of air and climate pollutants from the full range of emission sources and is based on the following four key priorities:

• Reduce emissions of criteria air pollutants and toxic air contaminants from all key sources. • Reduce emissions of “super-GHGs” such as methane, black carbon, and fluorinated gases. • Decrease demand for fossil fuels (gasoline, diesel, and natural gas). • Decarbonize our energy system.

City of San José Municipal Code

The City’s Municipal Code includes the following regulations that would reduce GHG emissions from future development:

• Green Building Ordinance (Chapter 17.84)
• Water Efficient Landscape Standards for New and Rehabilitated Landscaping (Chapter 15.10) Eterna Tower Mixed-Use Development Chapter 3
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• Transportation Demand Programs for employers with more than 100 employees (Chapter

11.105)
• Construction and Demolition Diversion Deposit Program (Chapter 9.10) • Wood Burning Ordinance (Chapter 9.10)

Council Policy 6-32 Private Sector Green Building Policy

In October 2008, the City Council adopted the Council Policy 6-32 “ Private Sector Green Building Policy”, which identifies baseline green building standards for new private construction and provides a framework for the implementation of these standards. This Policy requires that applicable projects achieve minimum green building performance levels using the Council adopted standards.

City of San José Greenhouse Gas Reduction Strategy

On December 15, 2015, the San José City Council certified a Supplemental Program Environmental Impact Report to the Envision San José 2040 Final Program Environmental Impact Report and re - adopted the City’s GHG Reduction Strategy in the General Plan. The GHG Reduction Strategy is intended to meet the mandates as outlined in the CEQA Guidelines and standards for “qualified plans” as set forth by BAAQMD. Projects that conform to the General Plan Land Use/Transportation Diagram and supporting policies are considered consistent with the City’s GHG Reduction Strategy.

The GHG Reduction Strategy identifies GHG emissions reduction measures to be implemented by development projects in three categories: built environment and energy; land use and transportation; and recycling and waste reduction. Some measures are mandatory for all proposed development projects and others are voluntary. Voluntary measures can be incorporated as mitigation measures for proposed projects, at the City’s discretion.

The Greenhouse Gas Reduction Strategy was updated for 2030. The 2030 GHG Reduction Strategy was adopted and the EIR Addendum were certified by the City Council on 11/17/2020. The 2030 GHG Reduction Strategy went into effect on 12/17/2020.

The 2030 GHG Reduction Strategy outlines the actions the City will undertake to achieve its proportional share of State GHG emission reductions for the interim target year 2030. The 2030 GHG Reduction Strategy presents the City’s comprehensive path to reduce GHG emissions to achieve the 2030 reduction target, based on SB 32, BAAQMD, and OPR requirements. Additionally, the 2030 GHG Reduction Strategy leverages other important City plans and policies; including the General Plan, Climate Smart San José, and the City Municipal Code in identifying reductions strategies that achieve the City’s target. CEQA Guidelines Section 15183.5 allows for public agencies to analyze and mitigate GHG emissions as part of a larger plan for the reduction of GHGs. Accordingly, the City of San José’s 2030 GHG Reduction Strategy represents San José’s qualified climate action plan in compliance with CEQA.

As described in the 2030 GHG Reduction Strategy, the GHG reductions will occur through a combination of City initiatives in various plans and policies to provide reductions from both existing and new developments. A GHG Reduction Strategy Compliance Checklist (checklist) was developed that applies to proposed discretionary projects that require CEQA review. Therefore, the checklist is a critical implementation tool in the City’s overall strategy to reduce GHG emissions. Implementation of applicable reduction actions in new development projects will help the City achieve incremental Eterna Tower Mixed-Use Development Chapter 3
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reductions toward its target. Per the 2030 GHG Reduction Strategy, the City will monitor strategy implementation and make updates, as necessary, to maintain an appropriate trajectory to the 2030 GHG target. Specifically, the purpose of the checklist is to:

• Implement GHG reduction strategies from the 2030 GHGRS to new development projects. • Provide a streamlined review process for proposed new development projects that are subject to discretionary review and trigger environmental review pursuant to CEQA.

Climate Smart San José

Climate Smart San José is a plan to reduce air pollution, save water, and create a stronger and healthier community. The City approved goals and milestones in February 2018 to ensure the City can substantially reduce GHG emissions through reaching the following goals and milestones.

• All new residential buildings will be Zero Net Carbon Emissions (ZNE) by 2020 and all new commercial buildings will be ZNE by 2030 (Note that ZNE buildings would be all electric with a carbon-free electricity source).
• San José Clean Energy (SJCE) will provide 100-percent carbon-free base power by 2021. • One gigawatt of solar power will be installed in San José by 2040. • 61 percent of passenger vehicles will be powered by electricity by 2030.

The California Energy Commission (CEC) updates the California Building Energy Efficiency Standards every three years, in alignment with the California Code of regulations. Title 24, Parts 6 and 11, of the California Building Energy Efficiency Standards and the California Green Building Standards Code (CALGreen) address the need for regulations to improve energy efficiency and combat climate change. The 2019 CAL Green standards include some substantial changes intended to increase the energy efficiency of buildings. For example, the code encourages the installation of solar and heat pump water heaters in low -rise residential buildings. The 2019 California Code went before City Council in October 2019 for approval, with an effective date of January 1, 2020. As part of this action, the City adopted a “reach code” that requires development projects to exceed the minimum Building Energy Efficiency requirements.
24 The City’s reach code applies only to new residential and non- residential construction in San José. It incentivizes all-electric construction, requires increased energy efficiency and electrification-readiness for those choosing to maintain the presence of natural gas. The code requires that non-residential construction include solar readiness. It also requires additional EV charging readiness and/or electric vehicle service equipment (EVSE) installation for all development types.

General Plan

In addition to the above, policies in the General Plan have been adopted for the purpose of avoiding or mitigating greenhouse gas emissions impacts from development projects. Policies applicable to the project are presented below.

24 City of San José Transportation and Environmental Committee, Building Reach Code for New Construction Memorandum, August 2019.

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Envision San José 2040 Relevant Greenhouse Gas Reduction Policies Policy MS-1.2 Continually increase the number and proportion of buildings within San José that make use of green building practices by incorporating those practices into both new construction and retrofit of existing structures.

Policy MS-2.3 Encourage consideration of solar orientation, including building placement, landscaping, design, and construction techniques for new construction to minimize energy consumption.

Policy MS-2.11 Require new development to incorporate green building practices, including those required by the Green Building Ordinance. Specifically, target reduced energy use through construction techniques (e.g., design of building envelopes and systems to maximize energy perfor mance), through architectural design (e.g. design to maximize cross ventilation and interior daylight) and through site design techniques (e.g. orienting buildings on sites to maximize the effectiveness of passive solar design).

Policy MS-5.5 Maximize rec ycling and composting from all residents, businesses, and institutions in the City
Policy MS-6.5 Reduce the amount of waste disposed in landfills through waste prevention, reuse, and recycling of materials at venues, facilities, and special events.

Policy MS-6.8 Maximize reuse, recycling, and composting citywide.

Policy MS-14.4 Implement the City’s Green Building Policies so that new construction and rehabilitation of existing buildings fully implements industry best practices, including the use
of optimized energy systems, selection of materials and resources, water efficiency, sustainable site selection, passive solar building design, and planting of trees and other landscape materials to reduce energy consumption.

Policy LU-5.4 Require new commercial development to facilitate pedestrian and bicycle access through techniques such as minimizing building separation from public sidewalks; providing safe, accessible, convenient, and pleasant pedestrian connections; and including secure and convenient bike storage.

Policy TR-2.18 Provide bicycle storage facilities as identified in the Bicycle Master Plan.

Policy CD-2.5 Integrate Green Building Goals and Policies of this Plan into site design to create healthful environments. Consider factors such a s shaded parking areas, pedestrian connections, minimization of impervious surfaces, incorporation of stormwater treatment measures, appropriate building orientations, etc.

Policy CD-3.3 Within new development, create and maintain a pedestrian -friendly environment by connecting the internal components with safe, convenient, accessible, and pleasant pedestrian facilities and by requiring pedestrian connections between building entrances, other site features, and adjacent public streets.

Policy CD-5.1 Design areas to promote pedestrian and bicycle movements and to facilitate interaction between community members and to strengthen the sense of community.

Existing Setting

Various gases in the earth’s atmosphere, classified as atmospheric greenhouse gases (GHGs), play a critical role in determining the earth’s surface temperature. Solar radiation enters the atmosphere from space and a portion of the radiation is absorbed by the earth’s surface. The earth emits this radiation back toward space, but the properties of the radiation change from high-frequency solar radiation to Eterna Tower Mixed-Use Development Chapter 3
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lower-frequency infrared radiation. Greenhouse gases, which are transparent to solar radiation, are effective in absorbing infrared radiation. As a result, this radiation that otherwise would have escaped back into space is retained, resulting in a warming of the atmosphere. This phenomenon is known as the greenhouse effect. Among the prominent GHGs contributing to the greenhouse effect, or climate change, are carbon dioxide (CO2), methane (CH4), ozone (O3), water vapor, nitrous oxide (N2O), and chlorofluorocarbons (CFCs). Human- caused emissions of these GHGs in excess of natural ambient concentrations are responsible for enhancing the greenhouse effect. Climate change is a cumulative effect from local, regional, and global GHG emission contributions. According to the EPA on a Global scale, CARB on a state scale, and BAAQMD on a County scale, the transportation sector is the largest emitter of GHG emissions, followed by electricity generation and the industrial sector. 25,26 ,27 The City
of San José also has the transportation sector as the largest emitter of GHG emission, but followed by residential and commercial development.28

The U.S. EPA reported that in 2018, total gross nationwide GHG emissions were 6,676.6 million metric tons (MMT) carbon dioxide equivalent (CO
2e).29 These emissions were lower than peak levels
of 7,416 MMT that were emitted in 2007. CARB updates the statewide GHG emission inventory on an annual basis where the latest inventory includes 2000 through 2017 emissions. 30 In 2017, GHG
emissions from statewide emitting activities were 424 MMT. The 2017 emissions have decreased by 14 percent since peak levels in 2004 and are 7 MMT below the 1990 emissions l evel and the State’s 2020 GHG limit. Per capita GHG emissions in California have dropped from a 2001 peak of 14.1 MT per person to 10.7 MT per person in 2017. The most recent Bay Area emission inventory was computed for the year 2011.
31 The Bay Area GHG emissions were 87 MMT. As a point of comparison, statewide emissions were about 444 MMT in 2011. According to San José’s GHGRS, the City’s emissions were

5.71 MMT.

The project site is developed with two existing commercial buildings. The existing GHG emissions at the site is from vehicles traveling to and from the site, as well as energy usage from natural gas and electricity.

25 EPA, https://www.epa.gov/ghgemissions/inventory-us-greenhouse-gas-emissions-and-sinks 26 CARB, https://ww2.arb.ca.gov/ghg-inventory-data
27 BAAQMD. Available at: https://www.baaqmd.gov/~/media/Files/Planning%20and%20Research/Emission%20Inventory/ BY2011_GHGSummary.ashx?la=en&la=en
28 City of San José, 2011. Greenhouse Gas Reduction Strategy for the City of San José . https://www.sanjoseca.gov/your- government/department-directory/planning-building-code-enforcement/planning-division/environmental-planning/greenhouse- gas-reduction-strategy
29 United States Environmental Protection Agency, 2020. Inventory of U.S. Greenhouse Gas Emissions and Sinks 1990-2018. April.

Web: https://www.epa.gov/sites/production/files/2020-04/documents/us-ghg-inventory-2020-main-text.pdf 30 CARB. 2019. 2019 Edition, California Greenhouse Gas Emission Inventory: 2000 – 2017. Web:
https://ww3.arb.ca.gov/cc/inventory/pubs/reports/2000_2017/ghg_inventory_trends_00-17.pdf 31 BAAQMD. 2015. Bay Area Emissions Inventory Summary Report: Greenhouse Gases Base Year 2011. January. Web:
http://www.baaqmd.gov/~/media/files/planning-and-research/emission-inventory/by2011_ghgsummary.pdf accessed March 2021.

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Impacts and Mitigation

Thresholds per CEQA Checklist

8. GREENHOUSE GAS EMISSIONS. Would the project:
a) Generate greenhouse gas emissions, either
directly or indirectly, that may have a
significant impact on the environment?
X 1, 3
b) Conflict with an applicable plan, policy or
regulation adopted for the purpose of reducing
the emissions of greenhouse gases?
X 1, 3

Explanation

As discussed below, the proposed project would not result in a new or greater impact on greenhouse gas emissions than was previously disclosed in the Downtown Strategy 2040 FEIR.

a) Same Impact as Approved Project. CARB previously recommended use of URBEMIS for predicting construction and operational emissions. In 2012 URBEMIS was considered outdated and was replaced by CalEEMod Version 2016.3.2. In the 2017 update to the CEQA Air Quality Guidelines, BAAQMD identifies screening criteria for the sizes of land use projects that could result in significant GHG emissions. The GHG screening criteria was developed from default assumptions used by URBEMIS. If a project is below the BAAQMD screening sizes, then the project would not exceed the 1,100 MT of CO
2e/yr GHG threshold of significance. The project
also would be considered less than significant if it demonstrates that it is consistent with the City’s 2030 GHG Reduction Strategy.

GHG emissions associated with development of the project would occur over the short -term from construction activities, consisting primarily of emissions from equipment exhaust and worker and vendor trips. Long-term operational emissions would also be generated from vehicular traffic, energy and water use, and solid waste disposal. However, the project, which consists primarily of multi -family residential housing and some commercial space in a downtown location with access to ample public transit, is not anticipated to generate substantial traffic and no onsite parking is proposed. Project trips would be limited to deliveries and some passenger cars. Therefore, emissions from project-generated traffic are considered negligible.

The project is subject to the GHG reduction strategies identified in the City’s 2030 GHG Reduction Strategy Compliance Checklist (see Appendix E). The project would implement and comply with all relevant GHG reduction measures as determined by the City. GHG reduction strategies to be incorporated into the project include the following (see also Appendix E):

• Implementation of green building measures through construction techniques and architectural design,
• Designation of areas for solar panels on the roof, and • Integration of water and waste reduction features.

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The project would not generate GHG emissions, either directly or indirectly, that would have a significant impact on the environment.

GHG emissions associated with construction were computed to be approximately 567 MT of CO2e for the total construction period. These consist of emissions from on-site operation of construction equipment, vendor and hauling truck trips, and worker trips. Neither the City nor BAAQMD have an adopted threshold of significance for construction-related GHG emissions, although BAAQMD recommends quantifying emissions and disclosing GHG emissions during construction. BAAQMD also encourages the incorporation of best management practices to reduce GHG emissions during construction where feasible and applicable.

b) Same Impact as Approved Project. The City’s 2030 GHG Reduction Strategy Compliance Checklist has been completed for the project, as presented in Appendix E. The GHG Reduction Strategy Compliance Checklist is intended to demonstrate a project’s compliance wit h the City’s 2030 GHG Reduction Strategy, as well as relevant policies from the City’s General Plan.

Since the residential component is the larger component of the proposed mixed-use development, the GHG Reduction Strategy Compliance Checklist was completed using the “residential” development type. The completed checklist indicated that the proposed project would either be consistent with each of the policies, or that individual policies were not applicable to the proposed project. The project would be consistent with the existing General Plan land use diagram, would be required to provide pedestrian and bicycle facilities consistent with the Municipal Code, and would comply with green building ordinances and all applicable energy efficiency measures. Therefore, the project would not conflict with an applicable plan, policy, or regulation adopted for the purpose of reducing the emissions of GHGs, since the project would comply with the City’s 2030 GHG Reduction Strategy.

Greenhouse Gas Emissions Chapter Conclusion

Development of the project would incorporate measures from applicable policies of the City’s General Plan and adopted GHG Reduction Strategy. The Downtown Strategy 2040 FEIR identified significant GHG emissions under 2040 conditions under project and cumulative conditions. Given the uncertainties about the feasibility of achieving the needed 2040 GHG emissions reductions, the Downtown Strategy 2040’s contribution to GHG emissions and climate change for the 2040 timeframe was determined to be significant and unavoidable. The City Council adopted a statement of overriding considerations for this impact. The proposed project would not result in new or more severe impacts on Greenhouse Gas Emissions than those identified in the Downtown Strategy 2040 EIR.

The project is located within the approved, single -bore, west option of the BART Extension Project.

The SEIS/SEIR for the BART Extension Project identified potential construction greenhouse gas emissions impacts and mitigation related to indirect or direct generation of GHG emissions (AQ - CNST-B through AQ-CNST-G). In addition, operational impacts and mitigation was identified related to indirect or direct generation of GHG emissions (GHG-CNST-A through GHG-CNST-D and AQ- CNST-I: Use Low-VOC Coatings). The operational impacts related to GHG emissions identified in the SEIS/SEIR remained significant and unavoidable even with mitigation.

As described above, the proposed project resulted in less than significant impact through implementation of Greenhouse Gas Reduction Strategies. As a result, the proposed project would not result in new significant impacts related to greenhouse gas emissions, compared to what was analyzed Eterna Tower Mixed-Use Development Chapter 3
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in the SEIS/SEIR. The project would have a less than significant impact with respect to greenhouse gas emissions and would not result in new or more severe greenhouse gas emission impacts than identified in the SEIS/SEIR for the BART Extension Project.

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I. HAZARDS AND HAZARDOUS MATERIALS

A Phase I Environmental Site Assessment was prepared for the project by AEI Consultants (August 11, 2021) and is contained in Appendix C.

Regulatory Framework

Federal

Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as Superfund, was enacted by Congress in 1980 and is administered by the U.S.

EPA. This law created a tax on the chemical and petroleum industries and provided broad Federal authority to respond directly to releases or threatened releases of hazardous substances that may endanger public health or the environment. CERCLA established prohibitions and requirements concerning closed and abandoned hazardous waste sites, provided for liability of persons responsible for releases of hazardous waste at these sites; and established a trust fund to provide for cleanup when no responsible party could be identified.

Resource Conservation and Recovery Act

The Resource Conservation and Recovery Act (RCRA) is a Federal law passed by Co ngress in 1976 to address the increasing problems from the nation’s growing volume of municipal and industrial waste. RCRA creates the framework for the proper management of hazardous and non-hazardous solid waste and is administered by the U.S. EPA. RCRA protects communities and resource conservation by enabling the EPA to develop regulations, guidance, and policies that ensure the safe management and cleanup of solid and hazardous waste, and programs that encourage source reduction and beneficial reuse. The term RCRA is often used interchangeably to refer to the law, regulations, and EPA policy and guidance.

S
tate

California Department of Toxic Substances Control

The California Department of Toxic Substances Control (DTSC) is a State agency that protects State citizens and the environment from exposure to hazardous wastes by enforcing hazardous waste laws and regulations. DTSC enforces action against violators; oversees cleanup of hazardous wastes on contaminated properties; makes decisions on permit applications from companies that want to store, treat or dispose of hazardous waste; and protects consumers against toxic ingredients in everyday products.

Cortese List: Section 65692.5(a)

California Code of Regulations Section 65962.5(a) requires that the DTSC compile and update an annual list, known as the Cortese List, of all hazardous waste facilities subject to corrective action, pursuant to Section 25187.5 of the Health and Safety Code. Facilities are added to the Cortese List are those that have failed to comply with a posted date for taking corrective action for an existing hazard Eterna Tower Mixed-Use Development Chapter 3
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or because DTSC determined that immediate corrective action is necessary to abate an immi nent or substantial endangerment.

California Code of Regulations, Title 8 Section 1529 – Asbestos

California Code of Regulations, Title 8, Section 1529 regulates asbestos exposure in all construction work, including structure demolition, removal of asbestos-containing materials, activities involving construction or alteration of existing structures that contain asbestos, installation of asbestos-containing products, emergency cleanup, and other activities. Section 1529 regulates permissible exposure limits for individual employees, standards for demarcation of regulated asbestos work areas, and safety protocol and equipment.

California Code of Regulations, Title 8 Section 1532.1 – Lead

California Code of Regulations, Title 8, Section 1532.1 applies to all construction work where an employee may be occupationally exposed to lead. As defined in this section, an employer shall assure that no employee is exposed to lead at concentrations greater than fifty micrograms per cubic meter of air (50µg/m
3) averaged over an 8-hour period. Employers are required to identify hazards at existing job sites and provide workers with training and sanitation stations for decontamination. Compliance is regulated by the California Occupational Safety Health Program (CAL/OSHA).

California Accidental Release Prevention Program

The California Accidental Release Prevention (CalARP) program is designed to help prevent the accidental release of substances that pose harm to public health and the environment. CalARP also provides guidance for minimizing damage from spills and requires businesses to develop Risk Management Plans (RMPs) if they handle a certain amount of a regulated substance. RMPs are detailed engineering documents that analyze the potential accident factors and identify mitigation for rapid implementation to reduce accident potential and address any accidental releases. The CalARP program is implemented by Unified Program Agencies (UPAs) at the local government levels. UPAs work directly with businesses to review and approve RMPs, conduct inspections, and provide public-facing data.

California State Water Resources Control Board

The California State Water Resources Control Board (SW RCB) and its nine regional boards are responsible for preserving , enhancing, and restoring the quality of California's water resources and drinking water for the protection of the environment, public health, and all beneficial uses. Through the 1969 Porter-Cologne Act, the State and Regional Water Boards have been entrusted with broad duties and powers to preserve and enhance all beneficial uses of the state's water resources.

Local

Regional Water Quality Control Board

The San Francisco Bay Regional Water Quality Control Board (RWQCB) is the lead agency responsible for identifying, monitoring and remediating leaking underground storage tanks in the Bay Eterna Tower Mixed-Use Development Chapter 3
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Area. Local jurisdictions may take the lead agency role as a Local Oversight Program (LOP) entity, implementing State as well as local policies.

Municipal Regional Stormwater Permit – Provision C.12.f

Polychlorinated biphenyls (PCBs) were produced in the United States between 1955 and 1978 and used in hundreds of industrial and commercial applications, including building and structure materials such as plasticizers, pai nts, sealants, caulk, and wood floor finishes. In 1979, the EPA banned the production and use of PCBs due to their potential harmful health effects and persistence in the environment. PCBs can still be released to the environment today during demolition of buildings that contain legacy caulks, sealants, or other PCB-containing materials. With the adoption of the San Francisco Bay Region MRP by the San Francisco Bay RWQCB on November 19, 2015, Provision C.12.f requires that permittees develop an assessment methodology for applicable structures planned for demolition to ensure PCBs do not enter municipal storm drain systems.

Municipalities throughout the Bay Area are currently modifying demolition permit processes and implementing PCB screening protocols to comply with Provision C.12. Buildings constructed between 1950 and 1980 that are proposed for demolition must be screened for the presence of PCBs prior to the issuance of a demolition permit. Single family homes and wood-frame structures are exempt from these requirements.

Santa Clara Department of Environmental Health

The County of Santa Clara Department of Environmental Health reviews California Accidental Release Prevention (CalARP) risk management plans as the Certified Unified Program Agency (CUPA) for the City. The CalARP Program aims to prevent accidental releases of regulated hazardous materials that represent a potential hazard beyond property boundaries. Facilities that are required to participate in the CalARP Program use or store specified quantities of toxic and flammable substances (hazardous materials) that can have off-site consequences if accidentally released. A Risk Management Plan (RMP) is required for such facilities. The intents of the RMP are to provide basic information that may be used by first responders in order to prevent or mitigate damage to the public health and safety and to the environment from a release or threatened release of a hazardous material, and to satisfy federal and state Community Right-to-Know laws.

General Plan

Policies in the General Plan have been adopted for the purpose of avoiding or mitigating hazardous materials impacts from development projects. All future development allowed by the proposed land use designation would be subject to the hazardous materials policies in the General Plan presented below.

Envision San José 2040 Relevant Hazardous Material Policies Policy EC-6.6 Address through environmental review for all proposals for new residential, park and recreation, school, day care, hospital, church or other uses that would place a sensitive population in close proximity to sites on which hazardous materials are or are likely to be located, the likelihood of an accidental release, the risks posed to human health and for sensitive populations, and mitigation measures, if needed, to protect human health.

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Envision San José 2040 Relevant Hazardous Material Policies Policy EC-7.1 For development and redevelopment projects, require evaluation of the proposed site’s historical and present uses to determine if any potential environmental conditions exist that could adversely impact the community or environment.

Policy EC-7.2 Identify existing soil, soil vapor, groundwater and indoor air contamination and mitigation for identified human health and environmental hazards to future users and provide as part of the environmental review process for all development and redevelopment projects. Mitigation measures for soil, soil vapor and groundwater contamination shall be designed to avoid adverse human health or environmental risk, in conformance with regional, state and federal laws, regulations, guidelines and standards.

Policy EC-7.3 Where a property is located in near proximity of known groundwater contamination with volatile organic compounds or within 1,000 feet of an active or inactive landfill, evaluate and mitigate the potential for indoor air intrusion of hazardous compounds to the satisfaction of the City’s Environmental Compliance Officer and appropriate regional, state and federal agencies prior to approval of a development or redevelopment project.

Policy EC-7.4 On redevelopment sites, determine the presence of hazardous building materials during the environmental review process or prior to project approval. Mitigation and remediation of hazardous building materials, such as lead-paint and asbestos- containing materials, shall be implemented in accordance with state and federal laws and regulations.

Policy EC-7.5 In development and redevelopment sites, require all sources of imported fill to have adequate documentation that it is clean and free of contamination and/or acceptable for the proposed land use considering appropriate environmental screening levels for contaminants. Disposal of groundwater from excavations on construction sites shall comply with local, regional, and State requirements.

Action EC-7.8 Where an environmental review process identifies the presence of hazardous materials on a proposed development site, the City will ensure that feasible mitigation measures that will satisfactorily reduce impacts to human health and safety and to the environment are required of or incorporated into the projects.

This applies to hazardous materials found in the soil, groundwater, soil vapor, or in existing structures.

Action EC-7.9 Ensure coordination with the County of Santa Clara Department of Environmental Health, Regional Water Quality Control Board, Department of Toxic Substances Control or other applicable regulatory agencies, as appropriate, on projects with contaminated soil and/or groundwater or where historical or active regulatory oversight exists.

Action EC-7.10 Require review and approval of grading, erosion control and dust control plans prior to issuance of a grading permit by the Director of Public Works on sites with known soil contamination. Construction operations shall be conducted to limit the creation and dispersion of dust and sediment runoff.

Action EC-7.11 Require sampling for residual agricultural chemicals, based on the history of land use, on sites to be used for any new development or redevelopment to account for worker and community safety during construction. Mitigation to meet appropriate end use such as residential or commercial/industrial shall be provided.

Policy MS-13.2 Construction and/or demolition projects that have the potential to disturb asbestos (from soil or building material) shall comply with all the requirements of the California Air Resources Board’s air toxics control measures (ATCMs) for Construction, Grading, Quarrying, and Surface Mining Operations.

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Existing Setting

The Phase I Environmental Site Assessment for the project site was prepared in conformance with ASTM E1527-13. The purpose of the Phase I Assessment is to identify the potential presence of any hazardous substances or petroleum products, their use, storage, and disposal at and in the vicinity of the site. The study focused on the following tasks: 1) a review of federal, state, tribal, and local databases that identify and describe underground fuel tank sites, leaking underground fuel tank sites, hazardous waste generation sites, and hazardous waste storage and disposal facility sites on or near the site; 2) a property and surrounding site reconnaissance and interviews with the past and present owners and current occupants and operators to identify potential environmental contamination; and 3) a review of historical sources to help ascertain previous land use at the site and in the surrounding area.

The existing property is currently occupied by two existing buildings. According to reviewed historical sources, the project site was developed as early as 1884 and utilized as unspecified storefronts, commercial offices, and a hotel through 1891. The building at 17 East Santa Clara was constructed by 1898 and the building at 29 East Santa Clara was constructed between 1898 and 1915. From 1922 to present day, the existing buildings have been occupied by various commercial and retail tenants, including hotels, restaurants, cafes, jewelry shops, drug stores, barbers, salons, wig stores, markets, and commercial offices.

The Phase I Assessment included a regulatory database review.

In determining if a listed site is a
potential environmental concern to the subject property, AEI generally applies the following criteria to classify the site as lower potential environmental concern: 1) the site only holds an operating permit (which does not imply a release), 2) the site's distance from, and/or topographic position relative to, the subject property, and/or 3) the site has recently been granted "No Further Action" by the appropriate regulatory agency. Below is a summary of the findings of the Phase I Assessment including the database search.

The northeastern adjoining property is listed as an open Spills, Leaks, Investigations, and Cleanup (SLIC) release case in the regulatory database. The Bassler -Haynes Building and Dr. EU Building, located in a cross-gradient direction to the project site at 35 and 43 East Santa Clara Street, are listed as the same active Cleanup Program Site (CPS)-SLIC case. The San Francisco Bay Regional Water Quality Control Board (RWQCB) is providing regulatory oversight of this CPS-SLIC case. Based on information reviewed on the GeoTracker online database, the Bassler -Hayne building was formerly occupied by a hotel. A dry-cleaning facility was located in the hotel basement that operated from about 1950 to 1969 and released perchloroethylene (PCE), a solvent used for dry cleaning. Since 1997, several environmental investigations have been conducted that included soil and grab groundwater samples, installation of groundwater monitoring wells, collection of soil -gas samples, and collection of indoor air samples. Results from these investigations indicated the presence of halogenated volatile organic compounds (HVOCs), including PCE, in soil, soil-gas, indoor air, and shallow groundwater at concentrations above their respective regulatory screening criteria at this site. 32 In addition, elevated
HVOC levels have been detected in soil, soil-gas, groundwater, and indoor air samples collected from the properties located north/northeast of the site (cross to down-gradient) at 15-25 North Second Street, 65 North Second Street, 4 North Second Street (Silicon Valley Towers), and 70 North Second Street; north of the site (down -gradient) at 50, 52, 60, 66, 80, and 90 North First Street; and east (cross- gradient) of the site at 75 East Santa Clara Street.

32 Commercial/Industrial Environmental Screening Levels (RWQCB 2016).

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In November 2018, analytical results of a soil gas sample obtained from sampling location SS -2, located approximately 10 feet northeast of the subject property, indicated that PCE was measured at

27.9 μg/m3 (with a duplicate sample concentration of 24.6 μg/m3). This concentration was noted to be below the cleanup level of 2,100 μg/m3. This sample point is estimated to be approximately 25 to 60 feet cross‐gradient of the suspected source area. Sample SS ‐2 was located approximately 25 and 50 feet (horizontally) from groundwater monitoring well MW‐6. When last sampled in 2016, monitoring well MW‐6 had a PCE concentration of 2,400 μg/L. In June 2020, a Soil Vapor Extraction (SVE) Pilot Test demonstrated that SVE is an effective remediation method of the vadose z one (which extends from the top of the ground surface to the water table ) at the site and full implementation was recommended. As of the most recent Bimonthly Status Report (June 2021) full -scale implementation of the SVE system is ongoing at the site. Based on the analytical results obtained from the 35 and 43 East Santa Clara Street property and other nearby vicinity properties, the adjoining open release case constitutes a Recognized Environmental Concern (REC) to the project site.

Impacts and Mitigation

Thresholds per CEQA Checklist

9. HAZARDS AND HAZARDOUS MATERIALS. Would the project:
a) Create a significant hazard to the public or the
environment through the routine transport,
use, or disposal of hazardous materials?
X 1, 2, 12
b) Create a significant hazard to the public or the
environment through reasonably foreseeable
upset and accident conditions involving the
release of hazardous materials into the
environment?
X 1, 2, 12
c) Emit hazardous emissions or handle hazardous
or acutely hazardous materials, substances, or
waste within one-quarter mile of an existing or
proposed school?
X 1, 2, 12
d) Be located on a site which is included on a list
of hazardous materials sites compiled pursuant
to Government Code Section 65962.5 and, as
a result, would it create a significant hazard to
the public or the environment?
X 1, 2, 12
e) For a project located within an airport land use
plan or, where such a plan has not been
adopted, within two miles of a public airport
or public use airport, would the project result
in a safety hazard or excessive noise for
people residing or working in the project area?
X 1, 2
f) Impair implementation of or physically
interfere with an adopted emergency response
plan or emergency evacuation plan?
X 1, 2
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ENVIRONMENTAL IMPACTS
New
Potentially
Significant
Impact
New
Less Than
Significant
With
Mitigation
Incorporated
New
Less Than
Significant
Impact
Same
Impact as
Approved
Project
Less
Impact
than
Approved
Project
Checklist
Source(s)
g) Expose people or structures, either directly or
indirectly, to a significant risk of loss, injury
or death involving wildland fires
X 1, 2

Explanation

As discussed below, the proposed project would not result in a new or greater impact on hazards and hazardous materials than was previously disclosed in the Downtown Strategy 2040 FEIR.

a) Same Impact as Approved Project. The proposed development would not involve the routine transport, use, or disposal of hazardous materials. The residential and retail uses may use small quantities of miscellaneous household cleaning supplies and other chemicals. These materials would be stored and used in accordance with the manufacturer’s specifications.

The project would use fuels, lubricants, paints, and solvents during construction activities. The project would prepare and implement a Storm Water Pollution Prevention Plan and appropriate best management practices to minimize the impact on water quality from release of hazardous materials during construction. In addition, the applicant proposes to implement standard protection measures for the temporary onsite storage of fuel and other hazardous materials used during construction.

b) Same Impact as Approved Project. The Phase I Assessment identified hazardous materials contamination at the adjoining site located at 35 and 43 East Santa Clara Street from high volatility organic compounds (HVOCs ). Based on the analytical results obtained from this property and other nearby vicinity properties, the adjoining open release case constitutes a REC. The Phase I Assessment recommends development and implementation of a Soil Management Plan (SMP) for the project during excavation and grading activities to provide measures to manage encountering, handling, and disposing of soil potentially impacted by hazardous substances.

Impact HAZ-1: D
evelopment of the proposed project could potentially expose construction workers and the public to soil, soil vapor and groundwater contaminants from HVOCs during the excavation/construction phas e of the project, and future users to soil and soil vapor contamination from HVOCs after construction.

M
itigation Measures

In accordance with the Downtown Strategy 2040 FEIR and recommendations of the Phase I Environmental Site Assessment prepared by AEI Consultants, the following mitigation measure shall be implemented to reduce impacts related to soil and soil vapor contamination.

MM HAZ-1: The project applicant shall retai n a qualified consultant to conduct a Phase II analysis consisting of focused sampling and analysis for contamination of soil, soil vapor, and/or groundwater on- site prior to issuance of any grading, building, or demolition permits. Sampling on the site shall be under the Eterna Tower Mixed-Use Development Chapter 3
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regulatory oversight from the Santa Clara County Department of Environmental Health’s (SCCDEHs) Voluntary Cleanup Program, or an equivalent program by another oversight agency, to address soil and groundwater contamination discovered on the property. Removal and off-site disposal of the soil at appropriate landfills during construction of the basement level will likely constitute the mitigation required; however, the oversight agency will approve the proposed mitigation, or determine if additional groundwater sampling and mitigation is necessary. Based on the results of the contamination levels at the site, the project applicant shall prepare, under the guidance of the oversight agency, a Site and Groundwater Management Plan (SGMP) or equivalent report. The SGMP or equivalent report must establish and implement remedial measures and/or soil management practices to ensure construction worker safety and the health of future workers and visitors.

The results of Phase II investigation and evidence of regulatory oversight, if required, and the appropriate plan such as an SG MP or equivalent document shall be provided to the Director of Planning, Building and Code Enforcement or the Director’s designee.

Asbestos & Lead Based Paint in Demolished Buildings

Development of the project would require the demolition of the two existing buildings on the site. Due to their age, these structures likely contain asbestos building materials and/or lead- based paint. Demolition conducted in conformance with federal, state and local regulations will avoid significant exposure of construction workers and/or the public to asbestos and lead- based paint. As a part of the development permit approval, the project will conform to the following standard permit conditions.

Standard Permit Conditions

• In conformance with State and local laws, a visual inspection/pre -demolition survey, and possible sampling, shall be conducted prior to the demolition of on-site building(s) to determine the presence of asbestos-containing materials (ACMs) and/or lead-based paint (LBP).

• During demolition activities, all building materials containing lead-based paint shall be removed in accordance with Cal/OSHA Lead in Title 8, California Code of Regulations (CCR), Section 1532.1, including employee training, employee air monitoring, and dust control. Any debris or soil containing lead-based paint or coatings shall be disposed of at landfills that meet acceptance criteria for the type of lead being disposed.

• All potentially friable asbestos containing materials (ACMs) shall be removed in accordance with National Emission Standards for Air Pollution (NESHAP) guidelines prior to demolition or renovation activities that may disturb ACMs. All demolition activities shall be undertaken in accordance with Cal/OSHA standards contained in Title 8, CCR, Section 1529, to protect workers from asbestos exposure.

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• A registered asbestos abatement contractor shall be retained to remove and dispose of ACMs identified in the asbestos survey performed for the site in accordance with the standards stated above. Materials containing more than one-percent asbestos are also subject to Bay Area Air Quality Management District (BAAQMD) regulations.

Removal of materials containing more than one-percent asbestos shall be completed in accordance with BAAQMD requirements and notifications.

• Based on Cal/OSHA rules and regulations, the following conditions are required to limit impacts to construction workers:

o Prior to commencement of demolition activities, a building survey, including sampling and testing, shall be completed to identify and quantify building materials containing lead-based paint.
o During demolition activities, all building materials containing lead -based paint shall be removed in accordance with Cal/OSHA Lead in Construction Standard, Title 8, CCR, Section 1532.1, including employee training, employee air monitoring and dust control.
o Any debris or soil containing lead-based paint or coatings shall be disposed of at landfills that meet acceptance criteria for the type of waste being disposed.

Polychlorinated Biphenyls

The buildings on-site were constructed between 1950 and 1980 and may contain PCBs in the building materials. Demolition of the buildings on-site could release PCBs in the environment.

Therefore, as part of the City’s permit process, the proposed project would be required to comply with the City of San José permitting requirements, consistent with Regional Water Quality Control Board (RWQCB) regulations, the project applicant shall be required to submit a polychlorinated biphenyls (PCB) Screening Assessment Form when applying for a demolition permit to demolish the existing building(s) on the project site, and shall comply with any resulting sampling and abatement procedures as directed by federal and state agencies.

With implementation of the identified Standard Permit Conditions, demolition of the buildings containing PCBs would reduce potential hazardous materials impacts to construction workers, adjacent uses, and nearby residences to a less than significant level.

c) Same Impact as Approved Project. The project is not located within ¼ mile of a school. The nearest school is Horace Mann Elementary, located approximately 1,600 feet east of the project site. In addition, mitigation is identified above for potential hazardous materials contamination of the site.

d) Same Impact as Approved Project. The project is not located on property that is included on a list of hazardous materials sites compiled pursuant to Government Code Section 65962.5 (i.e., Cortese List).

e) Same Impact as Approved Project. The Norman Y. Mineta San José International Airport is located approximately 1.7 miles northwest of the project site. The project is not located within the Santa Clara County Airport Land Use Commission’s adopted Airport Influence Area for the airport. However, Federal Aviation Regulations, Part 77, “Objects Affecting Navigable Eterna Tower Mixed-Use Development Chapter 3
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Airspace” (referred to as FAR Part 77) set forth standards and review requirements for protecting the airspace for safe aircraft operation, particularly by re stricting the height of potential structures and minimizing other potential hazards to aircraft such as reflective surfaces, flashing lights, and electronic interference. These regulations require that the Federal Aviation Administration (FAA) be notified of certain proposed construction projects located within an extended zone defined by an imaginary slope radiating outward for several miles from an airport’s runways, or which would otherwise stand at least 200 feet in height above ground. Since the proposed residential tower would be approximately 273 feet above ground, FAA notification and airspace safety review are required. In compliance with ALUC and City General Plan policy, the project would be required to obtain an FAA issued “Determination of No Hazard” for each of the proposed structure high points and comply with any conditions set forth by the FAA in its determinations. This process would ensure that project development would not be a potential aviation hazard. Additionally, the project would be required to grant an Avigation Easement to the City accepting elevation restrictions on the property as well as aircraft noise impacts.

As described in Section M. Noise and Vibration, the project site lies adjacent to or slightly outside of the 60 dBA CNEL/DNL contour line. The proposed project was found to be compatible with the City’s exterior noise standards for aircraft noise and would not be subject to excessive noise from the Mineta San José International Airport.

f) Same Impact as Approved Project. The proposed development would not interfere with any adopted emergency or evacuation plans. The project would not create any barriers to emergency or other vehicle movement in the area and would be designed to incorporate all Fire Code requirements.

g) Same Impact as Approved Project. The project would not expose people or structures, either directly or indirectly, to risk of loss, injury or death from wildland fires since it is located in a highly urbanized area that is not prone to such events. See also Section T . Wildfire of this document for further discussion of wildfire impacts, which were determined to result in no impact given the site location and low wildfire hazard.

Hazards and Hazardous Materials Chapter Conclusion

Development of the project would result in less than significant airport hazards and hazardous material transport-related impacts, consistent with the findings of the Downtown Strategy 2040 EIR. Standard permit conditions are identified to reduce potential impacts from impacted soil and groundwater from the project to a less than significant level, consistent with mitigation identified in the EIR. The project would not result in new or more significant impacts associated with hazards and hazardous materials than those identified in the Downtown Strategy 2040 EIR.

The project is located within the approved, single -bore, west option of the BART Extension Project.

The SEIS/SEIR for the BART Extension Project identified potential construction hazards and hazardous materials impacts and mitigation related to release of hazardous materials (HAZ-CNST-A:

Prepare Remedial Action Plans) and being located on a site that is listed as a hazardous material sites (HAZ-CNST-A: Prepare Remedial Action Plans ). In addition, an operational impact and mitigation was identified related being located on a site that is listed as a hazardous material sites (HAZ-CNST- A: Prepare Remedial Action Plans). All impacts to hazards and hazardous materials identified in the SEIS/SEIR were reduced to less than significant with mitigation.

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While the pr oposed project would result in potentially significant impacts related to hazards and hazardous materials, these would be reduced to a less than significant level through implementation of standard permit conditions and mitigation measures identified above. As a result, the proposed project would not result in new significant impacts to hazards and hazardous materials, compared to what was analyzed in the SEIS/SEIR. The project would have a less than significant impact with mitigation on hazards and hazardous materials and would not result in new or more severe hazardous materials impacts than identified in the SEIS/SEIR for the BART Extension Project.

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J. HYDROLOGY AND WATER QUALITY

Regulatory Framework

The federal Clean Water Act and California’s Porter-Cologne Water Quality Control Act are the primary laws regulating water quality in California. Requirements established by the U.S.

Environmental Protection Agency (EPA) and the State Water Resources Control Board (SWRCB) have been developed to fulfill the requirements of this legislation. EPA regulations include the National Pollutant Discharge Elimination System (NPDES) permit program, which controls sources that discharge pollutants into the waters of the United States (e.g., streams, lakes, bays, etc.). These regulations are implemented at the regional level by the Regional Water Quality Control Boards (RWQCBs). The project site is within the jurisdiction of the San Francisco Bay RWQCB.

Federal and State

Clean Water Act – Section 404

The Clean Water Act (CWA) establishes the basic structure for regulating discharges of pollutants into the waters of the United States (waters of the U.S.) and regulating quality standards for surface waters.

Its goals are to restore and maintain the chemical, physical, and biological integrity of the nation’s waters. Under the CWA, the US EPA has implemented pollution control programs and established water quality standards, and together with the U.S. Army Corps of Engineers, regulates discharge of dredged and fill material into waters of the U.S. under Section 404 of the CWA and its implementing regulations. Waters of the U.S. are defined broadly as waters susceptible to use in commerce (including waters subject to tides, interstate waters, and interstate wetlands) and other waters.

National Flood Insurance Program

FEMA established the National Flood Insurance Program (NFIP) in order to reduce flooding on private and public properties. The program provides subsidized flood insurance to communities that comply with FEMA regulations protecting development in floodplains. As part of the program, FEMA publishes Flood Insurance Rate Maps (FIRM) that identify Special Flood Hazard Areas (SFHA). An SFHA is an area that would be inundated by the one-percent annual chance flood, which is also referred to as the base flood or 100-year flood.

Porter-Cologne Water Quality Act

The Porter-Cologne Act delegates authority to the SWRCB to establish regional water quality control boards. The San Francisco Bay Area RWQCB has authority to use planning, permitting, and enforcement to protect beneficial uses of water resources in the project region. Under the Porter- Cologne Water Quality Control Act (California Water Code Sections 13000 -14290), the RWQCB is authorized to regulate the discharge of waste that could affect the quality of the state’s waters, including projects that do not require a federal permit through the USACE. To meet RWQCB 401 Certification standards, all hydrologic issues related to a project must be addressed, including the following:

• Wetlands
• Watershed hydrograph modification
• Proposed creek or riverine related modifications
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• Long-term post-construction water quality

Any construction or demolition activity that results in land disturbance equal to or greater than one acre must comply with the Construction General Permit (CGP), administered by the SWRCB. The CGP requires the installation and maintenance of BMPs to prote ct water quality until the site is stabilized. The project would not require CGP coverage , as the area of land disturbed (0.18 acres) would be less than one acre.

Statewide Construction General Permit

The SWRCB has implemented a NPDES General Construction Permit for the State of California (CGP). For projects disturbing one acre or more, a Notice of Intent (NOI) and Storm Water Pollution Prevention Plan (SWPPP) must be prepared by a qualified professional prior to commencement of construction. The CGP includes requirements for training, inspection, record keeping, and for projects of certain risk levels, monitoring. The general purpose of the requirements is to minimize the discharge of pollutants and to protect beneficial uses and receiving waters from the adverse effects of construction-related storm water discharges.

Regional and Local

San Francisco Bay Basin Plan

The San Francisco Bay RWQCB regulates water quality in accordance with the Water Quality Control Plan for the San Francisco Bay Basin (Basin Plan). The Basin Plan lists the beneficial uses that the San Francisco Bay RWQCB has identified for local aquifers, streams, marshes, rivers, and the San Francisco Bay, as well as the water quality obj ectives and criteria that must be met to protect these uses. The San Francisco Bay RWQCB implements the Basin Plan by issuing and enforcing waste discharge requirements, including permits for nonpoint sources such as the urban runoff discharged by a City’s stormwater drainage system. The Basin Plan also describes watershed management programs and water quality attainment strategies.

Municipal Regional Stormwater Permit

The San Francisco Bay RWQCB has issued a Municipal Regional Stormwater NPDES Permit (MRP) to regulate stormwater discharges from municipalities and local agencies (co-permittees) in Alameda, Contra Costa, San Mateo, and Santa Clara Counties, and the cities of Fairfield, Suisun City, and Vallejo. The City of San José is required to operate under the MRP to discharge stormwater from the City’s storm drain system to surface waters. The MRP mandates that the City of San José use its planning and development review authority to require that stormwater management measures are included in new and redevelopment projects to minimize and properly treat stormwater runoff.

Provision C.3 of the MRP regulates the following types of development projects:

• Projects that create or replace 10,000 square feet or more of impervious surface. • Special Land Use Categories that create or replace 5,000 square feet or more of impervious surface.

The MRP requires regulated projects to include Low Impact Development (LID) practices. These include site design features to reduce the amount of runoff requiring treatment and maintain or restore Eterna Tower Mixed-Use Development Chapter 3
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the site’s natural hydrologic functions, source control measures to prevent stormwater from pollution, and stormwater treatment features to clean polluted stormwater runoff prior to discharge into the storm drain system. The MRP requires that stormwater treatment measures are properly installed, operated, and maintained.

City of San José Post-Construction Urban Runoff Management (Policy 6-29)

The City of San José’s Policy 6-29 implements the stormwater treatment requirements of Provision C.3 of the Municipal Regional Stormwater NPDES Permit. The City of San José’s Policy 6-29 requires all new development and redevelopment projects to implement post-construction BMPs and Treatment Control Measures (TCMs). This policy also establishes specific design standards for post-construction TCM for projects that create, add, or replace 10,000 square feet or more of impervious surfaces.

City of San José Hydromodification Management (Policy 8-14)

The City of San José’s Policy No. 8-14 implements the stormwater treatment requirements of Provision C.3 of the MRP . Policy No. 8-14 requires all new and redevelopment projects that create or replace one acre or more of impervious surface to manage development-related increases in peak runoff flow, volume, and duration, where such hydromodification is likely to cause increased erosion, silt pollutant generation or other impacts to beneficial uses of local rivers, streams, and creeks. The policy requires these projects to be designed to control project-related hydromodification through a Hydromodification Management Plan (HMP).

Green Stormwater Infrastructure Plan

The City of San José has developed a Green Stormwater Infrastructure Plan (GSI Plan) to lay out the approach, strategies, targets, and tasks needed to transition traditional “gray” infrastructure to include green stormwater infrastructure over the long term and to implement and institutionalize the concepts of GSI into standard municipal engineering, construction, and maintenance practices. The GSI Plan is intended to serve as an implementation guide for reducing the adverse water quality impacts of urbanization and urban runoff on receiving waters over the long term, and a reporting tool to provide reasonable assurance that specific pollutant reductions from discharges to local creeks and San Francisco Bay will be met. The GSI Plan is required by the City’s MRP for the discharge of stormwater runoff from the City’s storm drain system.

General Plan

Policies in the General Plan have been adopted for the purpose of avoiding or mitigating hydrology and water quality impacts from development projects. Policies applicable to the project are presented below.

Envision San José 2040 Relevant Hydrology and Water Quality Policies Policy IN-3.7 Design new projects to minimize potential damage due to stormwaters and flooding to the site and other properties.

Policy IN-3.9 Require developers to prepare drainage plans for proposed developments that define needed drainage improvements per City standards.

Policy MS-3.4 Promote the use of green roofs (i.e., roofs with vegetated cover), landscape-based treatment measures, pervious materials for hardscape, and other stormwater management practices to reduce water pollution.

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Envision San José 2040 Relevant Hydrology and Water Quality Policies Policy ER-8.1 Manage stormwater runoff in compliance with the City’s Post-Construction Urban Runoff (6-29) and Hydromodification Management (8-14) Policies.

Policy ER-8.3 Ensure that private development in San José includes adequate measures to treat stormwater runoff.

Policy ER-8.5 Ensure that all development projects in San José maximize opportunities to filter, infiltrate, store and reuse or evaporate stormwater runoff onsite.

Policy EC-4.1 Design and build all new or remodeled habitable structures in accordance with the most recent California Building Code and municipal code requirements as amended and adopted by the City of San José, including provisions for expansive soil, and grading and stormwater controls.

Policy EC-5.7 Allow new urban development only when mitigation measures are incorporated into the project design to ensure that new urban runoff does not increase flood risks elsewhere.

Policy EC-5.16 Implement the Post-Construction Urban Runoff Management requirements of the City’s Municipal NPDES Permit to reduce urban runoff from project sites.

Policy EC-7.10 Require review and approval of grading, erosion control and dust control plans prior to issuance of a grading permit by the Director of Public Works on sites with known soil contamination. Construction operations shall be conducted to limit the creation and dispersion of dust and sediment runoff.

Existing Setting

The project site is essentially flat and lies at an elevation of about 87 feet above mean sea level. The

0.18-acre site is developed with a pair of two-story buildings. The current runoff from the site is directed into existing inlets that discharge to the City’s drainage system.

The project site does not contain any natural drainages or waterways. The nearest waterway is the Guadalupe River located about 2,770 feet west of the site. The Flood Insurance Rate Maps issued by the Federal Emergency Management Agency (FEMA) indicate that the project site is located within Zone D.
33 Zone D is defined as an area of undetermined but possible flood hazard outside the 100- year floodplain. The City does not have any floodplain restrictions for development in Zone D.

The City owns and maintains the storm drainage system in the project area. The drainage lines that serve the project site drain into Guadalupe River, located approximately 2,770 feet west of the site.

No over-land release of stormwater drains directly into any water body from the project site.

The project site is located within the inundation area for the Leroy Anderson Dam, based on the “California Dam Breach Inundation Maps” map provided by the California Department of Water Resources.
34 33 Panel # 0234H, Map # 06085C0234H
34 https://fmds.water.ca.gov/webgis/?appid=dam_prototype_v2 Eterna Tower Mixed-Use Development Chapter 3
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Impacts and Mitigation

Thresholds per CEQA Checklist

10. HYDROLOGY AND WATER QUALITY. Would the project:
a) Violate any water quality standards or waste
discharge requirements or otherwise
substantially degrade surface or ground water
quality?
X 1, 2
b) Substantially decrease groundwater supplies
or interfere substantially with groundwater
recharge such that the project may impede
sustainable groundwater management of the
basin?
X 1, 2
c) Substantially alter the existing drainage
pattern of the site or area, including through
the alteration of the course of a stream or river
or through the addition of impervious
surfaces, in a manner which would:

i) Result in substantial erosion or siltation on- or
off-site; X 1, 2
ii) Substantially increase the rate or amount of
surface runoff in a manner which would result
in flooding on- or offsite;
X 1, 2
iii) Create or contribute runoff water which would
exceed the capacity of existing or planned
stormwater drainage systems or provide
substantial additional sources of polluted
runoff; or
X 1, 2
iv) I mpede or redirect flood flows? X 1, 2, 13
d) In flood hazard, tsunami, or seiche zones, risk
release of pollutants due to project inundation? X 1, 2, 3, 13 e) Conflict with or obstruct implementation of a
water quality control plan or sustainable
groundwater management plan?
X 1, 2

Explanation

As discussed below, the proposed project would not result in a new or greater impact on hydrology and water quality than was previously disclosed in the Downtown Strategy 2040 FEIR.

a) Same Impact as Approved Project. The City’s National Pollutant Discharge Elimination System (NPDES) Municipal Regional Permit, urban runoff policies, and the Municipal Code are the primary means of enforcing water quality measures through the grading and building permit process. All construction/demolition projects must comply with the City of San José’s Grading Ordinance, which requires the use of erosion and sediment controls to protect water quality while the site is under construction. The project is subject to Municipal Code Section

20.100.470, which requires the project to incorporate BMPs to control the discharge of storm Eterna Tower Mixed-Use Development Chapter 3
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water pollutants including sediments associated with construction activities including erosion, as outlined in the standard permit conditions in item ci) below. The project is located in an urban environment and operation of the residential project would not utilize materials that would significantly harm the water quality in the area. Furthermore, the project would comply with applicable regulations and laws to ensure proper discharge into the City’s stormwater and sanitary infrastructure, would not violate any water quality standards or waste discharge requirements, or degrade surface or groundwater quality as described below.

b) Same Impact as Approved Project. Groundwater levels in the area are estimated to be on the order of 30-50 feet below ground surface (V&H Engineering, Stormwater Control Plan, April 2021). The project is located within the Santa Clara Plain Recharge Area of the Santa Clara Subbasin.
35 However, the project site is currently developed and excavation for the proposed approximately 10-foot deep basement would not reach groundwater levels. Thus, it is not anticipated that the project would decrease groundwater supplies or interfere substantially with groundwater recharge (such that the project may impede sustainable groundwater management of the basin), because 1) the project is proposed on a developed site that is not recharging groundwater through injection well -related measures (e.g., infiltration trenches, infiltration galleries), and 2) project construction would not involve excavation that would result in access to groundwater beneath the property. This represents a less than significant impact.

ci) Same Impact as Approved Project . Construction of the project would require grading activities that could result in a temporary increase in erosion affecting the quality of storm water runoff. This increase in erosion is expected to be minimal, due to the small size and flatness of the site. The City’s implementation requirements to protect water quality are described below.

Construction Impacts

The project shall incorporate Best Management Practices (BMPs) into the project to control the discharge of stormwater pollutants including sediments associated with construction activities. Examples of BMPs are contained in the publication Blueprint for a Clean Bay 36,
and include preventing spills and leaks, cleaning up spills immediately after they happen, storing materials under cover, and covering and maintaining dumpsters . Prior to the issuance of a grading permit, the project applicant may be required to submit an Erosion Control Plan to the Department of Public Works. The Erosion Control Plan may include BMPs as specified in ABAG’s Manual of Standards Erosion & Sediment Control Measures for reducing impacts on the City’s storm drainage system from construction activities.

The project applicant is required comply with the City of San José Grading Ordinance, including erosion and dust control during site preparation and with the City of San José Zoning Ordinance requirements for keeping adjacent streets free of dirt and mud during construction.

Typical measures that will be implemented to prevent stormwater pollution and minimize potential sedimentation during construction include but are not limited to:

• Restriction of grading to the dry season (April 30 through October 1) or meet City requirements for grading during the rainy season;

35 Santa Clara Valley Water District, 2016 Groundwater Management Plan, Figure 2-1. 36 Bay Area Stormwater Management Agencies Association.

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• Utilize on-site sediment control BMPs to retain sediment on the project site; • Utilize stabilized construction entrances and/or wash racks; • Implement damp street sweeping;
• Provide temporary cover of disturbed surfaces to help control erosion during construction; and
• Provide permanent cover to stabilize the disturbed surfaces after construction has been completed.

The project would somewhat modify the drainage pattern on the site. Consistent with the regulations and policies described above, the project will follow all standard permit conditions, as listed below. The standard permit conditions would be implemented prior to and during earthmoving activities on-site and would continue until the construction is complete and during the post-construction period as appropriate.

Standard Permit Conditions

• Burlap bags filled with drain rock shall be installed around storm drains to route sediment and other debris away from the drains.
• Earthmoving or other dust-producing activities shall be suspended during periods of high winds.
• All exposed or disturbed soil surfaces shall be watered at least twice daily to control dust as necessary.
• Stockpiles of soil or other materials that can be blown by the wind shall be watered or covered.
• All trucks hauling soil, sand, and other loose materials shall be required to cover all trucks or maintain at least two feet of freeboard.
• All paved access roads, parking areas, staging areas and residential streets adjacent to the construction sites shall be swept daily (with water sweepers). • Vegetation in disturbed areas shall be replanted as quickly as possible. • All unpaved entrances to the site shall be filled with rock to knock mud from truck tires prior to entering City streets. A tire wash system may also be employed at the request of the City.
• The project applicant shall comply with the City of San José Grading Ordinance, including implementing erosion and dust control during site preparation and with the City of San José Zoning Ordinance requirements for keeping adjacent streets free of dirt and mud during construction.

Post-Construction Impacts

The project is required to comply with applicable provisions of the following City Council Policies: Council Policy 6 -29 Post -Construction Urban Runoff Management and Council Policy 8-14 Post-Construction Hydromodification Management. For Council Policy 6-29 Post- Construction Urban Runoff Management, the project will be required to implement BMPs, which includes site design measures, source controls, and numerically-sized LID stormwater treatment measures to minimize stormwater pollutant discharges. The project site is not located in a Hydromodification Management (HM) area. However, details of specific Site Design, Pollutant Source Control, and Stormwater Treatment Control Measures demonstrating compliance with Provision C.3 of the MRP (NPDES Permit Number CAS612008), will be Eterna Tower Mixed-Use Development Chapter 3
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included in the project design, to the satisfaction of the Director of Public Works Department or Director’s designee.

In conclusion, the project would not substantially alter existing drainage patterns or cause alteration of streams or rivers by conforming with the requirements of Council Policy 6-29 and 8-14. The project would not result in substantial erosion or siltation on or off site by complying with the State’s Construction Stormwater Permit and the City’s Grading Ordinance.

Implementation of the standard permit conditions identified above would result in the same level of impact as the approved project.

cii) Same Impact as Approved Project. The project proposes to implement a stormwater control plan to manage runoff from the site consisting of the following source control measures:

• Beneficial Landscaping
• Use of Water Efficient Irrigation Systems
• Connect the Following to the Sanitary Sewer: covered trash/recycling enclosures • Provide Regular Maintenance (e.g., pavement sweeping, catch basin cleaning, good housekeeping)

Runoff would primarily be collected in stormwater treatment systems where flow rates would be decreased and treated prior to discharging into the City’s drainage system. New storm drain laterals would be built and connect to the existing 12-inch storm drain main in North Second Street. As a result, the proposed project would have a less than significant impact associated with flooding on- or off-site due to increased surface runoff.

ciii) Same Impact as Approved Project. The project proposes to connect to the City’s existing storm drainage system. The project is not expected to contribute runoff that would exceed the capacity of existing or planned stormwater drainage systems or result in substantial additional sources of polluted runoff. See also cii) above.

civ) Same Impact as Approved Project. The project site is located in Zone D, defined as an area of undetermined but possible flood hazard outside the 100-year floodplain. The City does not have any floodplain restrictions for development in Zone D. Therefore, the project would not impede or redirect flood flows.

d) Same Impact as Approved Project . The project site is not located in an area subject to significant seiche or tsunami effects. The project site is located within an inundation area for the Anderson Dam, based on the map entitled “Dam Failure Inundation Areas” in the General Plan EIR (Association of Bay Area Governments). This map assumes complete failure with a full reservoir. The actual extent and depth of inundation in the event of a failure would depend on the volume of storage in the reservoir at the time of failure. The risks of failure are reduced by several regulatory inspection programs, and risks to people and property in the inundation area are redu ced by local hazard mitigation planning. The California Department of Water Resources (DWR), Division of Safety of Dams is responsible for regular inspection of dams in California. DWR and local agencies (e.g., Valley Water) are responsible for minimizing the risks of dam failure thus avoiding the release of pollutants due to project inundation.

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e) Same Impact as Approved Project. The project consists of development on an approximately

0.18-acre infill site. As discussed under a) and b) above, the proposed project would comply with the City’s standard permit conditions, Policy 6-32, and the City of San José Grading Ordinance. In addition, the infill project would not impact groundwater recharge. Therefore, the project would not result in significant water quality or groundwater quality impacts that would conflict or obstruct implementation of a water quality control plan or sustainable groundwater management plan.

Hydrology and Water Quality Chapter Conclusion

Development of the project would have less than significant hydrology and water quality impacts comparable to those identified in the Downtown Strategy 2040 EIR. The proposed project would not result in new or more significant impacts associated with hydrology and water quality than those identified in the Downtown Strategy 2040 EIR.

The project is located within the approved, single -bore, west option of the BART Extension Project.

The SEIS/SEIR for the BART Extension Project identified potential construction hydrology and water quality impacts and mitigation related to degrading water quality or violating water quality standards (Mitigation Measure NV-CNST-D: Operate Equipment to Minimize Annoying Noise and Vibration), and depleting groundwater supplies or interfering with groundwater recharge (Mitigation Measure HAZ-CNST-A: Prepare Remedial Action Plans). In addition, an operational impact and mitigation was identified related to degrading water quality or violating water quality standards (Mitigation Measure WQ-A: Design and Implement Stormwater Control Measures ). All impacts to hydro logy and water quality identified in the SEIS/SEIR were reduced to less than significant with mitigation. The proposed project would result in less than significant impact through implementation of standard permit conditions. The project would have a less than significant impact with respect to hydrology and water quality and would not result in new or more severe water quality impacts than identified in the SEIS/SEIR for the BART Extension Project.

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K. LAND USE AND PLANNING

Regulatory Framework

State

The California State Density Bonus Law (California Government Code Section 65915) was adopted in 1979 in recognition of California’s acute and growing affordable housing needs. The State Density Bonus Law has been amended multiple times since adoption, in response to evolving housing conditions, to provide clarification on the legislation, to respond to legal and implementation challenges, and to incorporate new or expanded provisions.

Assembly Bill 1763 – Density Bonus Law

In 2019, Governor Newsom signed AB 1763, which amended the State’s Density Bonus Law to encourage housing project consisting completely of affordable units. The purpose of AB 1763 is to increase the available units from new affordable housing development to the maximum possible on any given development site. Under AB 1763, these housing projects can receive an 80 percent density bonus from the maximum allowable density otherwise allowed on the site. Cities are unable to apply any density limits to projects within half of a mile o f a major transit stop and can be granted a height increase of an additional three stories. Additionally, these projects are not subject to any City-mandated minimum parking requirements. All bonuses conferred under AB 1763 have to be requested by the developer during the planning phase of the project.

Regional and Local

Santa Clara Valley Habitat Plan

As discussed in Section 3.4, Biological Resources, the HCP was developed through a partnership between Santa Clara County, the Cities of San José, Morgan Hill, and Gilroy, Santa Clara Valley Water District (Valley Water), Santa Clara Valley Transportation Authority, U.S. Fish and Wildlife Service, and California Department of Fish and Wildlife. As it pertains to issues of land use, the HCP helps public and private entities within the HCP’s jurisdiction plan and conduct projects and activities in ways that lessen the impact on natural resources.

San José Municipal Code Chapter 20.190 – Affordable Housing Density Bonuses and Incentives

Chapter 20.190 of the City’s Municipal Code provides density bonuses for eligible residential development projects within City limits. This section largely contains the mechanism for enforcing the density bonuses mandated at the State level (see discussion of AB 1763, above). This section mandates that density bonuses are ineligible for sites where dwelling units were demolished within the last five years. This section also sets out development standards for affordable units, including requiring concurrent construction with market rate units in the same development and various design standards to ensure that affordable units are constructed in a uniform manner compared to market -rate units constructed as part of the same development.

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General Plan Designation

The project site is designated Downtown in the City’s Envision San José 2040 General Plan Land Use/Transportation Diagram.

General Plan

Policies in the General Plan have been adopted for the purpose of avoiding or mitigating land use impacts from development projects. Policies applicable to the project are presented below.

Envision San José 2040 Relevant Land Use and Planning Policies Policy CD-1.1 Require the highest standards of architectural and site design, and apply strong design controls for all development projects, both public and private, for the enhancement and development of community character and for the proper transition between areas with different types of land uses.

Policy CD-1.8 Create an attractive street presence with pedestrian-scaled building and landscape elements that provide an engaging, safe, and diverse walking environment.

Encourage compact, urban design, including use of smaller building footprints, to promote pedestrian activity through the City
Policy CD-4.9 For development subject to design review, ensure the design of new or remodeled structures is consistent or complementary with the surrounding neighborhood fabric (including but not limited to prevalent building scale, building materials, and orientation of structures to the street).

Policy IP-2.8 Allow development of residential units at the density and in the form approved in land use entitlements in place upon adoption of the Envision San José 2040 General Plan, including capacity specified in the adopted Downtown Strategy, North San José Area Development Policy, Evergreen-East Hills Development Policy, Specific Plans, and potential dwelling unit yield from residential properties identified on the City’s Vacant Land Inventory. When the City Council commences the second Horizon of the Envision General Plan, new or revised proposals for development on sites with previously approved residential entitlements should conform to the Land Use / Transportation Diagram.

Policy LU-1.2 Create safe, attractive, and accessible pedestrian connections between developments and to adjacent public streets to minimize vehicular miles traveled.

Policy LU-1.6 With new development or expansion and improvement of existing development or uses, incorporate measures to comply with current Federal, State, and local standards.

Policy LU-2.2 Include within the Envision General Plan Land Use / Transportation D iagram significant job and housing growth capacity within the following identified Growth Areas:
• Downtown – The City’s Downtown Strategy plans for ambitious job and housing growth capacity in the Downtown area to reinforce its role as San Jose’s civic, cultural and symbolic center and to support key infrastructure investments, including the planned BART and High-Speed Rail systems.

Policy LU-3.1 Provide maximum flexibility in mixing uses throughout the Downtown area.

Support intensive employment, entertainment, cultural, public/quasi- public, and residential uses in compact, intensive forms to maximize social interaction; to serve as a focal point for residents, businesses, and visitors; and to further the Vision of the Envision General Plan.

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Envision San José 2040 Relevant Land Use and Planning Policies Policy LU-3.2 Support Downtown as a primary employment center in the region, especially for financial institutions, insurance companies, government offices, professional services, information and communication technology companies, and businesses related to conventions.

Policy LU-3.3 Support the development of Downtown as an arts, cultural, and entertainment center for San José and the region. Promote special events, parades, celebrations, performances, concerts, and festivals.

Policy LU-3.4 Facilitate development of retail and service establishments in Downtown, and support regional- and local-serving businesses to further primary objectives of this Plan.

Policy LU-3.5 Balance the need for parking to support a thriving Downtown with the need to minimize the impacts of parking upon a vibrant pedestrian and transit oriented urban environment. Provide for the needs of bicyclists and pedestrians, including adequate bicycle parking areas and design measures to promote bicyclist and pedestrian safety.

Policy LU-3.6 Prohibit uses that serve occupants of vehicles (such as drive-through windows) and discourage uses that serve the vehicle (such as car washes and service stations), except where they do not disrupt pedestrian flow, are not concentrated, do not break up the building mass of the streetscape, and are compatible with the planned uses of the area.

Policy LU-3.7 Recognize the urban nature of Downtown and support 24 -hour uses and outdoor uses, so long as significant adverse impacts do not occur.

Policy LU-3.8 Leverage Downtown’s urban nature and promote projects that will help achieve economic, fiscal, environmental, cultural, transportation, social, or other objectives of this plan.

Policy LU-9.7 Ensure that new residential development does not impact the viability of adjacent employment uses that are consistent with the Envision General Plan Land Use / Transportation Diagram.

Policy VN-1.7 Use new development within neighborhoods to enhance the public realm, provide for direct and convenient pedestrian access, and visually connect to the surrounding neighborhood. As opportunities arise, improve existing development to meet these objectives as well.

Policy VN-1.11 Protect residential neighborhoods from the encroachment of incompatible activities or land uses which may have a negative impact on the residential living environment.

Policy VN-1.12 Design new public and private development to build upon the vital character and desirable qualities of existing neighborhoods

Santa Clara County Airport Land Use Commission Airport Plan

The project site is located outside of the “Airport Influence Area” established by the Santa Clara County Airport Land Use Commission (ALUC). As a result, t he project would not be subject to the policies of the Santa Clara County Airport Land Use Commission’s Comprehensive Land Use Plan (CLUP). Refer also to the discussion in Section I. Hazards and Hazardous Materials.

Existing Setting

The project site is designated Downtown in the City’s Envision San José 2040 General Plan Land Use/Transportation Diagram. The property is currently zoned DC – Downtown Primary Commercial.

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The project is located in an urbanized area of the City, with a mix of commercial and residential uses.

The site consists of two lots, each occupied by a two-story building. Land uses surrounding the site are listed below and shown in the aerial in Figure 3.

• North: Mixed-Use (residential, restaurants, office, vocational school, and commercial) • South: Mixed-Use (residential, restaurants, office, and commercial), medical offices, East Santa Clara Street
• East: Mixed-Use (residential, restaurants, office, and commercial), North Second Street • West: Mixed-Use (residential, restaurants, office, and commercial), North First Street

The project site is designated Downtown in the City’s Envision San José 2040 General Plan Land Use/Transportation Diagram. The property is currently zoned DC - Downtown Primary Commercial.

The Downtown designation supports high-density development in the office, retail, service, residential, and entertainment use categories. The DC zoning district conforms to the Downtown land use designation and supports the enumerated uses.

Impacts and Mitigation

Thresholds per CEQA Checklist

11. LAND USE AND PLANNING. Would the project:
a) Physically divide an established community? X 1, 2 b) Cause a significant environmental impact due
to a conflict with any land use plan, policy, or
regulation adopted for the purpose of avoiding
or mitigating an environmental effect?
X 1 - 15
c) Result in a 10 percent or greater increase in
the shadow cast onto any one of the six major
open space areas in the Downtown San José
area (St. James Park, Plaza of Palms, Plaza de
Cesar Chavez, Paseo de San Antonio,
Guadalupe River Park, and McEnery Park)?
Per the Downtown Strategy 2040 FEIR, a
significant shade and shadow impact would
occur if a project would result in a 10 percent
or greater increase in the shadow cast onto one
of the six major open space areas in
downtown San José (St. James Park, Plaza of
Palms, Plaza de Cesar Chavez, Paseo de San
Antonio, Guadalupe River Park, and McEnery
Park)?
X 1, 2, 3

Explanation

As discussed below, the proposed project would not result in a new or greater impact on land use and planning than was previously disclosed in the Downtown Strategy 2040 FEIR.

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a) Same Impact as Approved Project. The project is proposed on an existing developed site in downtown San José. The proposed mixed-use commercial and residential project would not physically divide an established community.

b) Same Impact as Approved Project . The project site is designated Downtown in the City’s 2040 General Plan. This designation allows office, retail, service, residential, and entertainment uses in the Downtown area, at very high intensities unless incompatible with other major policies within the Envision General Plan. Development within this designation should enhance the downtown community, support pedestrian and bicycle circulation, and increase transit ridership. Under this designation, allowed density is up to 800 dwelling units per acre (du/ac), allowed floor area ratio up to 30.0, and allowable building heights are 3 to 30 stories.

The project would be consistent with the Downtown designation, which supports high-density development as described above . The project proposes an infill mixed use commercial and residential development with 192 apartment units and 2,500 square feet of commercial space in a 26-story building on an approximately 0.18-gross acre site. The project proposes a density of approximately 1,066 dwelling units per acre (du/ac) with the affordable housing density bonus, a n FAR of 24, and a maximum building height of 26 floors, consistent with the Downtown land use designation.

The project site is located in the DC – Downtown Primary Commercial zoning district, intended to compliment and support the Downtown land use designation by allowing for more flexible zoning/mixed uses. The proposed high density mixed-use project is consistent with this zoning district. The DC Downtown Primary Commercial zoning of the project site permits uses including multiple dwelling unit residential, office/business/administrative uses, accessory buildings and structures, and off-street/off-site parking arrangements. Properties located within downtown zoning districts are only subject to height limitations necessary for the safe operation of San José International Airport. As such, the proposed building height of approximately 273 feet would be consistent with this requirement because FAA review and issuance of “determination of no hazard” clearances would have to be obtained prior to construction approval pursuant to federal regulations, as described in Section I. Hazards and Hazardous Materials.

The proposed project is consistent with the permitted uses under the current DC Downtown Primary Commercial District Zoning. The project’s site design and layout would generally be consistent with the development standards of the current zoning district and final design would be subject to the City’s design review proce ss. The project would not fully comply with the City’s Downtown Design Standards and Guidelines specifically related to historic resources, as described in Section E. Cultural Resources; however, these conflicts were not found to result in a significant impact and are reviewed through the exception process for planning conformance. Finally, the project would not require a General Plan amendment or rezoning.

The project, therefore, would not result in an environmental impact associated with conflicts with the General Plan or Zoning Code.

In terms of physical impacts on the environment, this IS /Addendum analyzes the environmental impacts of the project for each identified environmental resource area and provides measures and permit conditions to reduce the physical impacts of the project.

Therefore, the project would have a less than significant impact related to conflicts with a land Eterna Tower Mixed-Use Development Chapter 3
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use plan, policy, or regulation adopted for the purpose of avoiding or mitigating an environmental effect.

c) Same Impact as Approved Project. The nearest major open space area to the project site is St. James Park, a 6.8-acre park located approximately 600 feet north of the project site. A solar/shade simulation was prepared for the project by Anderson Architects, as presented in Figure 13, showing the increased shadows attributable to the proposed residential tower. As indicated in Figure 13, the project would increase shade in the area, affecting primarily adjacent streets, sidewalks, and buildings. The proposed residential tower would slightly increase shadows on a small portion on the southeast corner of the 6.8-acre park during the winter months, as shown in Figure 13. The project would result in a less than 10 percent increase (i.e., less than 29,620 square feet of the total 296,620 square foot St. James Park) in the shadow cast onto St. James Park, which would not result in a significant impact related to shade and shadows.

Land Use and Planning Chapter Conclusion

The project would have a less than significant impact related to land use and planning, consistent with the findings of the Downtown Strategy 2040 EIR. The project would not result in new or more significant land use impacts than those identified in the Downtown Strategy 2040 EIR.

The project is located within the approved, single -bore, west option of the BART Extension Project.

The SEIS/SEIR for the BART Extension Project identified potential land use impacts and mitigation related to conflicting with applicable habitat conservation plans ( BIO-CNST-E and BIO -CNST-F).

The proposed Eterna Towers project is not located in an area deemed environmentally sensitive based on the SCVHP. As a result, the proposed project would not result in new significant impacts to land use, compared to what was analyzed in the SEIS/SEIR. The project would have a less than significant impact on land use and would not result in new or more severe land use impacts than identified in the SEIS/SEIR for the BART Extension Project.

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L. MINERAL RESOURCES

Regulatory Framework

State

Surface Mining and Reclamation Act

Under the Surface Mining and Reclamation Act of 1975 (SMARA), the State Mining and Geology Board has designated only the Communications Hill Area of San José as containing mineral deposits of regional significance for aggregate (Sector EE). There are no mineral resources in the project area.

Neither the State Geologist nor the State Mining and Geology Board has classified any other areas in San José as containing mineral deposits that are of statewide significance or for which the significance requires further evaluation. Other than the Communications Hill area cited above, San José does not have mineral deposits subject to SMARA.

Existing Setting

There are no mineral resources in the project area. Neither the State Geologist nor the State Mining and Geology Board has classified any other areas in San José as containing mineral deposits that are of statewide significance or for which the significance requires further evaluation. Other than the Communications Hill area cited above, San José does not have mineral deposits subject to SMARA.

The project site lies outside of the Communications Hill area.

Impacts and Mitigation

Thresholds per CEQA Checklist

12. MINERAL RESOURCES. Would the project:
a) Result in the loss of availability of a known
mineral resource that would be of value to
the region and the residents of the state?
X 1, 2
b) Result in the loss of availability of a locally-
important mineral resource recovery site
delineated on a local general plan, specific
plan or other land use plan?
X 1, 2

Explanation

As discussed below, the proposed project would not result in a new or greater impact on mineral resources than was previously disclosed in the Downtown Strategy 2040 FEIR.

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a) Same Impact as Approved Project. The project site is located over three miles northwest of the Communications Hill area, the only area in San José containing mineral deposits subject to SMARA; therefore, the project will not result in a significant impact from the loss of availability of a known mineral resource.

b) Same Impact as Approved Project. The project site is located over three miles northwest of the Communications Hill area, the only area in San José containing mineral deposits subject to SMARA; therefore, the project will not result in a significant impact from the loss of availability of a known mineral resource.

Mineral Resources Chapter Conclusion

The project would not result in the loss of availability of known mineral resources, consistent with the findings of the Downtown Strategy 2040 EIR. The project would not result in new or more significant mineral resource impacts than those identified in the Downtown Strategy 2040 EIR.

The project is located within the approved, single -bore, west option of the BART Extension Project.

The SEIS/SEIR for the BART Extension Project did not identify any potentially significant impacts related to mineral resources. As a result, the proposed project would not result in new significant impacts to mineral resources compared to what was analyzed in the SEIS/SEIR.

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M. NOISE & VIBRATION

A noise and vibration assessment has been prepared for the project by Illingworth & Rodkin, Inc. (July 2021), which is contained in Appendix D. 37 The following discussion summarizes the results of this assessment.

Regulatory Setting

Federal

Federal Highway Administration Roadway Construction Noise Model

The Federal Highway Administration (FHWA) Roadway Construction Noise Model (RNCM) is the national model for prediction of noise generated by construction projects. Since construction frequently occurs near residences and businesses, the FHWA developed the RNCM in an effort to control and monitor construction noise to avoid impacts on surrounding communities and neighborhoods. The RNCM provides a federally-recognized construction noise screening tool to reliably and easily predict construction noise levels and to determine compliance with noise limits for construction projects of varying types.

State

California Building Code

The 2019 California Building Code (CBC) requires interior noise levels attributable to exterior environmental noise sources to be limited to a level not exceeding 45 dBA DNL/CNEL in any habitable room. The State of California established exterior sound transmission control standards for new non- residential buildings as set forth in the California Green Building Standards Code (Section 5.507.4.1 and 5.507.4.2). These sections identify the standards, such as Sound Transmission Class ratings, 38 that
project building materials and assemblies need to comply with based on the noise environment.

Local

San José General Plan Noise Compatibility Guidelines

The City’s General Plan includes goals and policies pertaining to noise and vibration. Community Noise Levels and Land Use Compatibility (commonly referred to as the Noise Element) of the General Plan utilizes the DNL descriptor and identifies interior and exterior noise standards for residential uses.

The General Plan include the following criteria for land use compatibility and acceptable exterior noise levels in the City based on land use types.

37 Noise/vibration modeling for the project was completed based on original project design assumptions. After consulta tion with report consultation, project modifications made following the conclusion of noise/vibration modeling would result in similar or barely measurable increased noise and vibration levels
38 Sound Transmission Class (STC) is a single figure rating designed to give an estimate of the sound insulation properties of a partition. Numerically, STC represents the number of decibels of speech sound reduction from one side of the partition to the other.

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EXTERIOR NOISE EXPOSURE (DNL IN DECIBELS DBA)
FROM GENERAL PLAN TABLE EC-1: Land Use Compatibility Guidelines for Community Noise in San José
Land Use Category Exterior DNL Value In Decibels
55 60 65 70 75 80

1. Residential, Hotels and Motels, Hospitals and
Residential Care

2. Outdoor Sports and Recreation, Neighborhood
Parks and Playgrounds

3. Schools, Libraries, Museums, Meeting Halls,
and Churches

4. Office Buildings, Business Commercial, and
Professional Offices

5. Sports Arenas, Outdoor Spectator Sports

6. Public and Quasi-Public Auditoriums, Concert
Halls, and Amphitheaters

Normally Acceptable: Specified land use is satisfactory, based upon the assumption that any buildings involved are of normal conventional construction, without any special noise insulation requirements.

Conditionally Acceptable: Specified land use may be permitted only after detailed analysis of the noise reduction requirements and noise mitigation features included in the design.

Unacceptable: New construction or development should generally not be undertaken because mitigation is usually not feasible to comply with noise element policies. (Development will only be considered when technically feasible mitigation is identified that is also compatible with relevant design guidelines.)

Additionally, policies in the General Plan have been adopted for the purpose of avoiding or mitigating noise and vibration impacts from development projects. Policies applicable to the project are presented below.

Envision San José 2040 Relevant Noise and Vibration Policies Policy EC-1.1 Locate new development in areas where noise levels are appropriate for the proposed uses. Consider federal, state and City noise standards and guidelines as a part of new development review. Applicable standards and guidelines for land uses in San José include:

Interior Noise Levels
• The City’s standard for interior noise levels in residences, hotels, motels, residential care facilities, and hospitals is 45 dBA DNL. Include appropriate site and building design, building construction and noise attenuation techniques in new development to meet this standard. For sites with exterior noise levels of 60 dBA DNL or more, an acoustical analysis following protocols in the City-adopted California Building Code is required to demonstrate that development projects can meet this standard. The acoustical analysis shall base required noise attenuation techniques on expected Envision General Plan traffic volumes to ensure land use compatibility and General Plan consistency over the life of this plan.

Exterior Noise Levels
• The City’s acceptable exterior noise level objective is 60 dBA DNL or less for residential and most institutional land uses (refer to Table EC-1 in the General Plan. Residential uses are considered “normally acceptable” with exterior noise exposures of up to 60 dBA DNL and “conditional ly compatible” where the exterior noise exposure is between 60 and 75 dBA DNL such that the specified Eterna Tower Mixed-Use Development Chapter 3
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Envision San José 2040 Relevant Noise and Vibration Policies land use may be permitted only after detailed analysis of the noise reduction requirements and needed noise insulation features are included in the design.

Policy EC-1.2 Minimize the noise impacts of new development on land uses sensitive to increased noise levels (Land Use Categories 1, 2, 3 and 6 in Table EC-1 in the General Plan by limiting noise generation and by requiring use of noise attenuation measures such as acoustical enclosures and sound barriers, where feasible. The City considers significant noise impacts to occur if a project would:
• Cause the DNL at noise sensitive receptors to increase by five dBA DNL or more where the noise levels would remain “Normally Acceptable”; or • Cause the DNL at noise sensitive receptors to increase by three dBA DNL or more where noise levels would equal or exceed the “Normally Acceptable” level.

Policy EC-1.3 Mitigate noise generation of new nonresidential land uses to 55 dBA DNL at the property line when located adjacent to existing or planned noise -sensitive residential and public/quasi-public land uses.

Policy EC-1.6 Regulate the effects of operational noi se from existing and new industrial and commercial development on adjacent uses through noise standards in the City’s Municipal Code.

Policy EC-1.7 Require construction operations within San José to use best available noise suppression devices and techniques and limit construction hours near residential uses per the City’s Municipal Code. The City considers significant construction noise impacts to occur if a project located within 500 feet of residential uses or 200 feet of commercial or office uses would:
• Involve substantial noise generating activities (such as building demolition, grading, excavation, pile driving, use of impact equipment, or building framing) continuing for more than 12 months.

For such large or complex projects, a construction noise logistics plan that specifies hours of construction, noise and vibration minimization measures, posting or notification of construction schedules, and designation of a noise disturbance coordinator who would respond to neighborhood complaints will be required to be in place prior to the start of construction and implemented during construction to reduce noise impacts on neighboring residents and other uses.

Policy EC-1.9 Require noise studies for land use proposals where known or suspected loud intermittent noise sources occur which may impact adjacent existing or planned land uses. For new residential development affected by noise from heavy rail, light rail, BART or other single-event noise sources, implement mitigation so that recurring maximum instantaneous noise levels do not exceed 50 dBA Lmax in bedrooms and 55 dBA Lmax in other rooms.

Policy EC-1.11 Continue to require safe and compatible land uses within the Norman Y. Mineta International Airport noise zone (defined by the 65 CNEL contour as set forth in State law) and encourage aircraft operating procedures that minimize noise.

Policy EC-2.3 Require new development to minimize continuous vibration impacts to adjacent uses during demolition and construction. For sensitive historic structures, including ruins and ancient monuments or buildings that are documented to be structurally weakened, a continuous vibration limit of 0.08 in/sec PPV (peak particle velocity) will be used to minimize the potential for cosmetic damage to a building. A continuous vibration limit of 0.20 in/sec PPV will be used to minimize the potential for cosmetic damage at buildings of normal conventional construction. Avoid use of impact pile drivers within 125 feet of any buildings, and within 300 feet of a historical building, or Eterna Tower Mixed-Use Development Chapter 3
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Envision San José 2040 Relevant Noise and Vibration Policies building in poor condition. On a project-specific basis, this distance of 300 feet may be reduced where warranted by a technical study by a qualified professional that verifies that there will be virtually no risk of cosmetic damage to sensitive buildings from the new development during demolition and construction.

San José Municipal Code

Per the San José Municipal Code Title 20 (Zoning Ordinance) Noise Performance Standards, the sound pressure level generated by any use or combination of uses on a property shall not exceed the decibel levels indicated in the table below at any property line, except upon issuance and in compliance with a Special Use permit or Conditional Use Permit as provided in Chapter 20.100.

City of San José Zoning Ordinance Noise Standards
Land Use Types Maximum Noise Levels in
Decibels at Property Line
Residential, open space, industrial or commercial uses adjacent to a property used or zoned for residential purposes 55 Open space, commercial, or industrial use adjacent to a property used for zoned for commercial purposes or other non-residential uses
60 Industrial use adjacent to a property used or zoned for industrial use or other use other than commercial or residential purposes 70

Chapter 20.100.450 of the Municipal Code establishes allowable hours of construction within 500 feet of a residential unit between 7:00 AM and 7:00 PM Monday through Friday and no construction activities are permitted on the weekends , unless permission is granted with a development permit or other planning approval.

Existing Setting

Noise Fundamentals

Noise is measured in decibels (dB) and is typically characterized using the A-weighted sound level or dBA. This scale gives greater weight to the frequencies to which the human ear is most sensitive. The City’s Envision San José 2040 General Plan applies the Day -Night Level (DNL) descriptor in evaluating noise conditions. The DNL represents the average noise level over a 24 -hour period and penalizes noise occurring between the hours of 10 PM and 7 AM by 10 dB.

Vibration Fundamentals

Several different methods are typically used to quantify vibration amplitude. One method, used by the City, is Peak Particle Velocity (PPV). The PPV is defined as the maximum instantaneous positive or negative peak of the vibration wave. For this analysis, the PPV descriptor with units of millimeters per second (mm/sec) or inches per second (in/sec) is used to evaluate construction generated vibration for building damage and human annoyance.

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Existing Noise Environment

The existing noise environment at the site results primarily from vehicular traffic along East Santa Clara Street and from local traffic along First and Second Streets, which intersect East Santa Clara Street to the west and to the east, respectively. Aircraft associated with Mineta San José International Airport and Santa Clara Valley Transportation Authority (VTA) light rail operations contribute to the noise environment at times, but to a lesser extent as compared to local vehicular traffic.

Due to the Shelter-in-Place restrictions in the Bay Area at the time of this study, traffic volumes along the surrounding roadways were reduced from typical conditions. A noise monitoring survey was not completed to document ambient noise levels during this unique time period because resultant noise levels would not be representative of typical ambient conditions. However, the project site and the surrounding area falls within the plan area for the Dow ntown San José Strategy Plan 2040 EIR.

Measurements and noise contours generated for the Downtown Strategy Plan were reviewed to establish the existing noise environment baseline.

As part of the ambient noise measurements made for the Downtown Strategy Plan, the existing traffic noise contours, based on peak hour traffic volumes provided in 2015, were generated for the Plan Area.

Noise levels at the project site would range from 64 to 69 dBA DNL in 2015, as shown in in Figure

17. In the model, a receptor was positioned 75 feet from the centerline of East Santa Clara Street, east of Market Street. At this distance, noise levels in 2015 were 67 dBA DNL.

Assuming about a 1% increase in traffic volumes along East Santa Clara Street each year, which would represent standard growth in a built-out area, noise levels by 2021 would increase by less than 1 dBA DNL.

Nearest Sensitive Receptors

The nearest sensitive receptors with respect to noise and vibration would be those located on the upper floors of the building at the southeast corner of the intersection of East Santa Clara/ North First Street intersection and in the upper floors the buildings north of the project site along North First Street. The existing hourly average noise levels range from 64 to 69 dBA Leq during daytime hours.

Figure
Eterna Tower
EIR Addendum
Noise Contour Map 17
Source: Illingworth & Rodkin, July 2021

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Impacts and Mitigation

Thresholds per CEQA Checklist

13. NOISE. Would the project result in
a) Generation of a substantial temporary or
permanent increase in ambient noise levels
in the vicinity of the project in excess of
standards established in the local general
plan or noise ordinance, or applicable
standards of other agencies?
X 14
b) Generation of excessive groundborne
vibration or groundborne noise levels? X 14
c) For a project located within the vicinity of
a private airstrip or an airport land use plan
or, where such a plan has not been adopted,
within two miles of a public airport or
public use airport, would the project
expose people residing or working in the
project area to excessive noise levels?
X 14

Explanation

As discussed below, the proposed project would not result in a new or greater impacts related to noise than was previously disclosed in the Downtown Strategy 2040 FEIR.

Significance Criteria

The following criteria were used to evaluate the significance of environmental noise resulting from the project:

• A significant noise impact would be identified if th e project would generate a substantial temporary or permanent noise level increase over ambient noise levels at existing noise - sensitive receptors surrounding the project site and that would exceed applicable noise standards presented in the General Plan a t existing noise-sensitive receptors surrounding the project site.

• A significant noise impact would be identified if construction-related noise would temporarily increase ambient noise levels at sensitive receptors. The City of San José considers large or complex projects involving substantial noise -generating activities and lasting more than 12 months significant when within 500 feet of residential land uses or within 200 feet of commercial land uses or offices.

• A significant permanent noise level increase would occur if project -generated traffic would result in: a) a noise level increase of 5 dBA DNL or greater, with a future noise level of less than 60 dBA DNL, or b) a noise level increase of 3 dBA DNL or greater, with a future noise level of 60 dBA DNL or greater.

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• A significant noise impact would be identified if the project would expose persons to or generate noise levels that would exceed applicable noise standards presented in the General Plan.

• A significant impact would be identified if the construction of the project would generate excessive vibration levels surrounding receptors. Groundborne vibration levels exceeding 0.2 in/sec PPV would have the potential to result in cosmetic damage to normal buildings. For sensitive historic structures, a continuous vibration limit of 0.08 in/sec PPV is used to determine the impact significance.

a) Same Impact as Approved Project. The following addresses the temporary and permanent increase in ambient noise levels in the vicinity of the project in excess of applicable standards.

The noise and vibration effects associated with the project are described below based on the results of the noise and vibration study (see Appendix D).

Project-Generated Noise Impacts During Operations

Mechanical Equipment Noise. T
he City’s General Plan does not include policies specifically addressing mechanical noise generated by residential land uses. However, the residential mechanical noise should be addressed with respect to the City’s Municipal Code threshold of 55 dBA to minimize disturbance to the existing and future residences surrounding the project site.

T
he site plan shows mechanical and electrical rooms in the basement, as well as a pump room and a water tank. The proposed project would also include an emergency generator, which would also be located in the basement level. For a building of this size, an emergency generator with a capacity of 500 kW would be expected. Due to the location of the generator and other equipment in the basement, noise levels generated by such equipment would be shielded from existing receptors surrounding the project site. Therefore, the City’s 55 dBA DNL threshold would not be exceeded at nearby residential land uses.

According to the applicant, the proposed building would also include air handling units (AHU) on the roof, located at the staircase towers. Details pertaining to the number, size, and type of AHU units are unavailable at this time. AHU equipment can generate noise levels from 68 to 83 dBA at a distance of 3 feet from the source. Due to have a wide range of source levels and other unknown variables, an accurate assessment of mechanical equipment noise should be completed once manufacturer-provided noise level information of equipment expected for the proposed project is available.

Conservatively, the AHU equipment located on the roof of the proposed building would potentially exceed the City’s Municipal Code threshold of 55 dBA at the adjoining residential properties. Since the City’s General Plan does not include policies specifically addressing mechanical noise generated by residential land uses, no General Plan policies would be violated by noise levels generated by the AHU equipment, and this would be considered a less -than- significant impact. However, mechanical equipment noise generated from the rooftop of the proposed building could potentially exceed the City’s Municipal Code thresholds at the nearest receptors.

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The final design plans should be reviewed by a qualified acoustical consultant to address any potential conflicts with the General Plan or Municipal Code. For noise-generati ng land uses, the Downtown San José Strategy Plan 2040 EIR states the following:

The implementation of General Plan Policies EC -1.2, EC-1.3, and EC-1.9 would reduce potential impacts associated with new noise-producing land uses facilitated by the plan to a less-than-significant level. Policy EC-1.2 limits noise generation by requiring use of noise attenuation measures, such as acoustical enclosures and sound barriers, where feasible, to avoid substantial increases to ambient noise. General Plan Policy EC-1.3 would be implemented and would require new projects to mitigate noise generation to 55 dBA DNL at the property line. Lastly, General Plan Policy EC-1.9 would be implemented and would require that studies be conducted to mitigate loud intermittent noise sources associated with new projects.

The implementation of the policies from the Downtown San José Strategy Plan 2040 EIR would reduce noise levels originating from the project site to a less than significant level.

Noise from Project Traffic. A
ccording to Policy EC-1.2 of the City’s General Plan, a significant noise increase would occur if the project would increase noise levels at noise -sensitive receptors by 3 dBA DNL or more where ambient noise levels exceed the “normally acceptable” noise level standard. Where ambient noise levels are at or below the “normally acceptable” noise level standard, noise level increases of 5 dBA DNL or more would be considered significant. The City’s General Plan defines the “normally acceptable” outdoor noise le vel standard for the nearby residential land uses to be 60 dBA DNL. Existing ambient levels, based on the measurements made in the project vicinity, exceed 60 dBA DNL. Therefore, a significant impact would occur if traffic due to the proposed project would permanently increase ambient levels by 3 dBA DNL. For reference, a 3 dBA DNL noise increase would be expected if the project would double existing traffic volumes along a roadway.

A
traffic study was not required for the proposed project since parking and vehicular access to the site is not part of the project description. While bicycle parking will be included in the project, the project will not generate vehicular traffic trips. Therefore, the project would not result in a permanent noise increase of 3 dBA DNL or more at noise-sensitive receptors in the project vicinity. This represents a less than significant impact.

Project-Generated Noise Impacts During Construction

Noise impacts resulting from construction depend upon the noise generated by various pieces of construction equipment, the timing and duration of noise -generating activities, and the distance between construction noise sources and noise -sensitive areas. Construction noise impacts primarily result when construction activities occur during noise-sensitive times of the day (e.g., early morning, evening, or nighttime hours), the construction occurs in areas immediately adjoining noise -sensitive land uses, or when construction lasts over extended periods of time.

Policy EC-1.7 of the City’s General Plan requires that all construction operations within the City to use best available noise suppression devices and techniques and to limit construction hours near residential uses per the Municipal Code allowable hours, which are between the Eterna Tower Mixed-Use Development Chapter 3
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hours of 7:00 a.m. and 7:00 p.m. Monday through Friday when construction occurs within 500 feet of a residential land use. Further, the City considers significant construction noise impacts to occur if a project located within 500 feet of residential uses or 200 feet of commercial or office uses would involve substantial noise-generating activities (such as building demolition, grading, excavation, pile driving, use of impact equipment, or building framing) continuing for more than 12 months. Project construction proposes work hours from 8:00 a.m. to 5:00 p.m., Monday through Friday, which would fall within the City’s allowable construction hours.

The nearest noise-sensitive receptors would be located in the upper floors of a building in the southeast corner of the East Santa Clara Street/North First Street intersection and in the upper floors the buildings north of the project site along North First Street. In 2005, Illingworth & Rodkin conducted a monitoring survey at a nearby project site (35 South Second Street). 39 The
hourly average noise levels measured in 2005 ranged from 64 to 69 dBA L eq during daytime hours. The day-night average noise level measured at this location in 2005 was w ithin 1 dBA of the day-night average noise level along First Street measured in 2018 for the Downtown Strategy Plan; therefore, these ambient noise levels would adequately establish the existing noise environment at the noise-sensitive receptors in the project vicinity.

Construction activities generate considerable amounts of noise, especially during earth-moving activities when heavy equipment is used. The construction of the proposed project would involve demolition of the existing buildings located on the site, grading and trenching, and building construction. The hauling of excavated materials and construction materials would generate truck trips on local roadways, as well. For the proposed project, pile driving is not proposed or anticipated.

Construction activities for individual projects are typically carried out in phases. During each phase of construction, there would be a different mix of equipment operating, and noise levels would vary by phase and vary within phases, based on the amount of equipment in operation and the location at which the equipment is operating. The typical range of maximum instantaneous noise levels for the proposed project would be 70 to 90 dBA L max at a distance
of 50 feet (see Table 10) from the equipment. Table 11 shows the average noise level ranges, by construction phase. Hourly average noise levels generated by construction are about 65 to 88 dBA L
eq for a residential building measured at a distance of 50 feet from the center of a busy construction site. Construction-generated noise levels drop off at a rate of about 6 dBA per doubling of the distance between the source and receptor. Shielding by buildings or terrain often result in lower construction noise levels at distant receptors.

Table 10
Construction Equipment 50-Foot Noise Emission Limits40
Equipment Category Lmax Level (dBA)1,2 Impact/ Continuous Arc Welder
Auger Drill Rig
Backhoe
Bar Bender
Boring Jack Power Unit
Chain Saw
73 85
80 80
80 85
Continuous
Continuous
Continuous
Continuous
Continuous
Continuous

39 Illingworth & Rodkin, Inc., “Fountain Alley Project Draft Noise Assessment,” October 31, 2005. 40 Construction equipment listed in this table is provided for informational purposes and is not necessarily representative of the equipment proposed for use during construction of the proposed project. No pile driving is proposed for this project.

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Table 10
Construction Equipment 50-Foot Noise Emission Limits40
Equipment Category Lmax Level (dBA)1,2 Impact/ Continuous Compressor3
Compressor (other)
Concrete Mixer
Concrete Pump
Concrete Saw
Concrete Vibrator
Crane
Dozer
Excavator
Front End Loader
Generator
Generator (25 KVA or less)
Gradall
Grader
Grinder Saw
Horizontal Boring Hydro Jack
Hydra Break Ram
Impact Pile Driver
Insitu Soil Sampling Rig
Jackhammer
Mounted Impact Hammer (hoe ram)
Paver
Pneumatic Tools
Pumps
Rock Drill
Scraper
Slurry Trenching Machine
Soil Mix Drill Rig
Street Sweeper
Tractor
Truck (dump, delivery)
Vacuum Excavator Truck (vac-truck)
Vibratory Compactor
Vibratory Pile Driver
All other equipment with engines larger than 5 HP
70 80
85 82
90 80
85 85
85 80
82 70
85 85
85 80
90 105
84 85
90 85
85 77
85 85
82 80
80 84
84 85
80 95
85 Continuous
Continuous
Continuous
Continuous
Continuous
Continuous
Continuous
Continuous
Continuous
Continuous
Continuous
Continuous
Continuous
Continuous
Continuous
Continuous
Impact
Impact
Continuous
Impact
Impact
Continuous
Continuous
Continuous
Continuous
Continuous
Continuous
Continuous
Continuous
Continuous
Continuous
Continuous
Continuous
Continuous
Continuous
Notes:
1 Measured at 50 feet from the construction equipment, with a “slow” (1 sec.) time constant. 2 Noise limits apply to total noise emitted from equipment and associated components operating at full power while engaged in its intended operation.
3 Portable Air Compressor rated at 75 cfm or greater and that operates at greater than 50 psi.

Table 11
Typical Ranges of Construction Noise Levels at 50 Feet, Leq (dBA) Activity Domestic Housing
Office Building,
Hotel, Hospital,
School, Public
Works
Industrial Parking
Garage, Religious
Amusement &
Recreations, Store,
Service Station
Public Works Roads
& Highways,
Sewers, and
Trenches

I II I II I II I II
Ground
Clearing

83 83

84 84

84 83

84 84

Excavation

88 75

89 79

89 71

88 78
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Table 11
Typical Ranges of Construction Noise Levels at 50 Feet, Leq (dBA) Activity Domestic Housing
Office Building,
Hotel, Hospital,
School, Public
Works
Industrial Parking
Garage, Religious
Amusement &
Recreations, Store,
Service Station
Public Works Roads
& Highways,
Sewers, and
Trenches

I II I II I II I II

Foundations

81 81

78 78

77 77

88 88

Erection

81 65

87 75

84 72

79 78

Finishing

88 72

89 75

89 74

84 84
I - All pertinent equipment present at site.

II - Minimum required equipment present at site.

Source: U.S.E.P.A., Legal Compilation on Noise, Vol. 1, p. 2-104, 1973.

A detailed list of equipment expected to be used during each phase of project construction was provided and is summarized in Table 12. The Federal Highway Administration’s (FHWA’s) Roadway Construction Noise Model (RCNM) was used to calculate the hourly average noise levels for each phase of construction, assuming every piece of equipment would operate simultaneously, representing the worst-case scenario. This construction noise model includes representative sound levels for the most common types of construction equipment and the approximate usage factors of such equipment.

For each phase, the worst-case hourly average noise level, as estimated at the property line of each surrounding land use, is also shown in Table 12. For overall construction noise level s, multiple pieces of equipment used simultaneously would combine to create a collective noise source.

While every piece of equipment per phase would likely be scattered throughout the site, the noise-sensitive receptors surrounding the site would be subject to the collective noise source generated by all equipment operating at once. Therefore, to assess construction noise impacts at the receiving property lines of noise -sensitive receptors, the collective worst-case hourly average noise level for each phase was centered at the geometrical center of the site and propagated to the nearest property line of the surrounding land uses. These noise level estimates are also shown in Table 12. Noise levels in Table 12 do not assume reductions due to intervening buildings or existing barriers.

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Table 12
Estimated Construction Noise Levels at Nearby Land Uses Phase of
Constr.

Time
Duration
Construction
Equipment (Quantity)
Calculated Hourly Average Noise Levels, Leq (dBA)
Ambient Noise Levels = 64 to 69 dBA Leq
North Comm.
(30 ft)
East & West
Comm. (45 ft)
NW Res. &
Comm. (65 ft)
Nearby Res.

North (125 ft)
Nearby Res. SW
(155 ft)
Level
dBA
Exceeds
Ambient
by 5 dBA
or more?
Level,
dBA
Exceeds
Ambient
by 5 dBA
or more?
Level,
dBA
Exceeds
Ambient
by 5 dBA
or more?
Level,
dBA
Exceeds
Ambient
by 5 dBA
or more?
Level,
dBA
Exceeds
Ambient
by 5 dBA
or more?
Demolition 5/1/2028-
9/1/2028
Concrete/Ind. Saw (1)
Excavator (1)
Rubber-Tired Dozer (1)
Tractor/Loader/
Backhoe (1)
90 Yes 87 Yes 84 Yes 78 Yes 76 Yes
Site
Preparation
5/1/2028-
9/1/2028
Grader (1)
Rubber-Tired Dozer (1)
Tractor/Loader/
Backhoe (1)
89-
93a Yes 86-
89a Yes 82-
86a Yes 77-
80a Yes 75-
78a Yes
Grading/
Excavation
7/1/2028-
1/1/2029
Excavator (1)
Concrete/Ind. Saw (1)
Tractor/Loader/
Backhoe (1)
90-
94b Yes 86-
91b Yes 83-
88b Yes 77-
82b Yes 75-
80b Yes
Trenching/
Foundation
1/1/2029-
6/15/2029
Tractor/Loader/
Backhoe (1)
Excavator (1)
86 Yes 83 Yes 79 Yes 74 Yes 72 No
Building –
Exterior
6/1/2029-
8/22/2030
Crane (1)
Forklift (1)
Generator Set (1)
Welder (1)
84-
88c Yes 81-
85c Yes 77-
82c Yes 71-
76c Yes 70-
74c Yes
Building –
Interior/
Architectural
Coating
6/1/2029-
5/1/2030
Air Compressor (1)
Aerial Lift (1)
79-
85d Yes 76-
82d Yes 72-
79d Yes 67-
73d Yes 65-
71d No
a Range of hourly average noise levels reflects the site preparation phase only and in combination with the demolition phase. b Range of hourly average noise levels reflects the grading/excavation phase only and in combination with the demolition and site preparation phases. c Range of hourly average noise levels reflects the building – exterior phase only and in combination with the trenching/foundation phase. d Range of hourly average noise levels reflects the building – interior phase only and in combination with the building – exterior phase.

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As shown in Table 12, ambient levels at the existing land uses in the project site vicinity would potentially be exceeded by 5 dBA Leq or more at various times throughout construction. Project construction is expected to last for approximately 28 months. Considering that the project site is within 500 feet of existing residences and within 200 feet of existing commercial uses, and construction would last longer than 12 months, the proposed project would be considered a significant temporary noise impact per Policy EC-1.7 of the City’s General Plan.

Impact NSE-1 : Construction noise would exceed ambient levels by five dBA for a period of more than one year, which exceeds City thresholds defined in General Plan Policy EC-1.7, within 500 feet of residential uses or 200 feet of commercial or office uses.

M
itigation Measures: In accordance with the Downtown Strategy 2040 FEIR and recommendations of the Noise and Vibration Assessment prepared by Illingworth & Rodkin, the following mitigation measure shall be implemented to reduce construction noise impacts to sensitive receptors during all phases of construction on the project site.

MM NSE 1 Prior to the issuance of any grading, building or demolition permits, whichever occurs first, the project applicant shall submit and implement a construction noise logistics plan that specifies hours of construction, noise and vibration minimization measures, posting and notification of construction schedules, equipment to be used, and designation of a noise disturbance coordinator to the Director of Planning, Building and Code Enforcement or Director’s Designee.

The noise disturbance coordinator shall respond to neighborhood complaints and shall be in place prior to the start of construction and the construction noise logistics plan implemented during construction to reduce noise impacts on neighboring residents and other uses
below the threshold of 5 dBA within 500
feet of residential uses or 200 feet of commercial or office uses. A telephone number for the disturbance coordinator shall be conspicuously posted at the construction site. The notice sent to neighbors regarding the construction schedule shall be included in the posted sign.

Consistent with the Downtown Strategy 2040 FEIR, the noise logistic plan shall include, but is not limited to, the following measures:

• The project contractor shall use “new technology” power construction equipment with state-of-the-art noise shielding and muffling devices.

• All internal combustion engines used on the project site shall be equipped with adequate mufflers and shall be in good mechanical condition to minimize noise created by faulty or poorly maintained engines or other components.

• The project contractor shall use “new technology” power cons truction equipment with state-of-the-art noise shielding and muffling devices. All internal combustion engines used on the project site shall be equipped with adequate mufflers and shall be in good mechanical condition to minimize noise created by faulty or poorly maintained engines or other components.

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• The project contractor shall locate staging areas and construction material areas as far away as possible from adjacent land uses.

Standard Permit Conditions

• Pile driving is prohibited.

• Limit construction hours to between 7:00 AM and 7:00 PM, Monday through Friday for any on-site or off-site work within 500 feet of any residential unit. Construction outside of these hours may be approved through a development permit.

• Construct solid plywood fences around ground level construction sites adjacent to operational businesses, residences, or other noise-sensitive land uses.

• Equip all internal combustion engine -driven equipment with intake and exhaust mufflers that are in good condition and appropriate for the equipment.

• Prohibit unnecessary idling of internal combustion engines.

• Locate stationary noise-generating equipment such as air compressors or portable power generators as far as possible from sensitive receptors. Construct temporary noise barriers to screen stationary noise-generating equipment when located near adjoining sensitive land uses.

• Utilize “quiet” air compressors and other stationary noise sources where technology exists.

• Control noise from construction workers’ radios to a point where they are not audible at existing residences bordering the project site.

• Notify all adjacent business, residences, and other noise-sensitive land uses of the construction schedule, in writing, and provide a written schedule of “noisy” construction activities to the adjacent land uses and nearby residences.

• If complaints are received or excessive noise levels cannot be reduced using the measures above, erect a temporary noise control blanket barrier along surrounding building facades that face the construction sites.

• Designate a “disturbance coordinator” who shall be responsible for responding to any complaints about construction noise. The disturbance coordinator shall determine the cause of the noise complaint (e.g., bad muffler, etc.) and shall require that reasonable measures be implemented to correct the problem. Conspicuously post a telephone number for the disturbance coordinator at the construction site and include it in the notice sent to neighbors regarding the construction schedule.

Implementation of Mitigation Measure NSE-1 and the Standard Permit Conditions , the temporary construction noise would be reduced to a less than significant level, which is the same as the approved project.

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b) Same Impact as Approved Project. The construction of the project may generate perceptible vibration when heavy equipment or impact tools (e.g., jackhammers, hoe rams) are used.

Construction activities would include demolition, site preparation work, foundation work, and new building framing and finishing. Pile driving equipment, which can cause excessive vibration, is not expected to be required for the proposed project because no pile driving is proposed.

According to Policy EC-2.3 of the City of San José General Plan, a vibration limit of 0.08 in/sec PPV is used to minimize the potential for cosmetic damage to sensitive historical structures, and a vibration limit of 0.20 in/sec PPV is used to minimize damage at buildings of normal conventional construction. The vibration limits contained in this policy are conservative and designed to provide the highest level of protection for existing buildings in San José. As discussed below, vibration levels exceeding these thresholds would be capable of cosmetically damaging adjacent buildings. Cosmetic damage (also known as threshold damage) is defined as hairline cracking in plaster, the opening of old cracks, the loosening of paint or the dislodging of loose objects. Minor damage is defined as hairline cracking in masonry or the loosening of plaster. Major structural damage is defined as wide cracking or the shifting of foundation or bearing walls.

Table 13 presents typical vibration levels that could be expected from construction equipment at a distance of 25 feet. Project construction activities, such as drilling, the use of jackhammers, rock drills and other high-power or vibratory tools, and rolling stock equipment (tracked vehicles, compactors, etc.), may genera te substantial vibration in the immediate vicinity.

Jackhammers typically generate vibration levels of 0.035 in/sec PPV, and drilling typically generates vibration levels of 0.09 in/sec PPV at a distance of 25 feet. Vibration levels would vary depending on soil conditions, construction methods, and equipment used. Table 13 also summarizes the distances to the 0.08 in/sec PPV threshold for historical buildings and to the

0.2 in/sec PPV threshold for all other buildings.

Table 13
Vibration Source Levels for Construction Equipment
Equipment PPV at 25
feet. (in/sec)
Minimum Distance
to Meet 0.08 in/sec
PPV (feet)
Minimum Distance
to Meet 0.2 in/sec
PPV (feet)
Clam shovel drop 0.202 58 26
Hydromill
(slurry wall)
in soil 0.008 3 1
in rock 0.017 6 2
Vibratory Roller 0.210 60 27
Hoe Ram 0.089 28 12
Large bulldozer 0.089 28 12
Caisson drilling 0.089 28 12
Loaded trucks 0.076 24 10
Jackhammer 0.035 12 5
Small bulldozer 0.003 1 <1
Source: Transit Noise and Vibration Impact Assessment, United States Department of Transportation, Office of Planning and Environment, Federal Transit Administration, September 2018, as modified by Illingworth & Rodkin, Inc., March 2021

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As shown in Figure 18, three existing buildings classified as historical in the City’s inventory adjoin the site to the east, northeast, and northwest. In addition, the nearest building of normal conventional construction would adjoin the site to the west. All three historical buildings and the conventional building would be located within five feet of the project site. Figure 18 shows a historical building to the north of the project site and additional historical buildings to the south of East Santa Clara Street. The building to the north would be approximately 70 feet from the project’s northern boundary, and the buildings to the south would be approximately 95 feet from the project site. As shown in Table 14, a historical building located 60 feet or more from potential construction activities would not be exposed vibration levels exceeding

0.08 in/sec PPV.

Table 12 summarizes the vibration levels at the three historical buildings and the conventional building immediately adjoining the site. Vibration levels are highest close to the source and then attenuate with increasing distance. While construction noise levels increase based on the cumulative equipment in use simultaneously, construction vibration levels would be dependent on the location of individual pieces of equipment. That is, equipment scattered throughout the site would not generate a collective vibration level, but a vibratory roller, for instance, operating near the project site boundary would generate the worst-case vibration levels for the receptor sharing that property line. Further, construction vibration impacts are assessed based on damage to buildings on receiving land uses, not receptors at the nearest property lines.

Therefore, the distances used to propagate construction vibration levels (as shown in Table 12), which are different than the distances used to propagate construction noise levels (as shown in Table 13), were estimated under the assumption that each piece of equipment from Table 11 was operating along the nearest boundary of the project site, which would represent the worst- case scenario.

Project construction activities, such as drilling, the use of jackhammers, rock drills and other high-power or vibratory tools, and rolling stock equipment (tracked vehicles, compactors, etc.) may generate substantial vibration in the immediate vicinity of the historical or conventional buildings adjoining the project site. As shown in Table 14, the 0.08 in/sec PPV threshold would potentially be exceeded within about 60 feet of the surrounding buildings, and the 0.2 in/sec PPV threshold for conventional buildings would be exceeded within 27 feet. Due to the close proximity of the buildings immediately surrounding the site, the use of most construction equipment along the shared property line would potentially exceed the City’s thresholds, as shown in Table 14.

Figure
Eterna Tower
EIR Addendum
Historical Buildings Near Project Site 18
Source: Illingworth & Rodkin, July 2021

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Table 14
Vibration Levels at Nearby Buildings
Equipment
PPV (in/sec)
North
Conventional
Building
(5 feet)
South & SW
Historical
Buildings
(5 feet)
West
Historical
Building
(35 feet)
NW
Historical
Building
(25 feet)
East
Conventional
Building
(75 feet)
Clam Shovel Drop 1.186 1.186 0.140 0.202 0.060
Hydromill
(slurry wall)
in soil 0.047 0.047 0.006 0.008 0.002
in rock 0.100 0.100 0.012 0.017 0.005
Vibratory Roller 1.233 1.233 0.145 0.210 0.063
Hoe Ram 0.523 0.523 0.061 0.089 0.027
Large Bulldozer 0.523 0.523 0.061 0.089 0.027
Caisson Drilling 0.523 0.523 0.061 0.089 0.027
Loaded Trucks 0.446 0.446 0.052 0.076 0.023
Jackhammer 0.206 0.206 0.024 0.035 0.010
Small bulldozer 0.018 0.018 0.002 0.003 0.001
Source: Transit Noise and Vibration Impact Assessment Manual, Federal Transit Administration, Office of Planning and Environment, U.S. Department of Transportation, September 2018, as modified by Illingworth & Rodkin, Inc., July 2021.

Heavy vibration-generating construction equipment, such as vibratory rollers or clam shovel drops, would have the potential to produce vibration levels of 0.08 in/sec PPV or more at historic buildings within 60 feet of the project site and to produce vibration levels of 0.2 in/sec PPV or more at conventional buildings within 27 feet of the project site.

Neither cosmetic, minor, or major damage would occur at historical or conventional buildings located more than 60 feet from the project site. At these locations, and in other surrounding areas where vibration would not be expected to cause cosmetic damage, vibration levels may still be perceptible. However, as with any type of construction, this would be anticipated and would not be considered significant, given the intermittent and short duration of the phases that have the highest potential of producing vibration (use of jackhammers and other high-power tools). By use of administrative controls, such as notifying neighbors of scheduled construction activities and scheduling construction activities with the highest potential to produce perceptible vibration during hours with the least potential to affect nearby businesses, perceptible vibration can be kept to a minimum.

In summary, the construction of the project would generate vibration levels exceeding the General Plan threshold of 0.08 in/sec PPV at historic properties adjoining the site and 0.2 in/sec PPV at conventional buildings adjoining the site. Such vibration levels would be capable of cosmetically damaging the adjacent buildings.

Impact NSE-2: Cons
truction of the project would generate vibration levels exceeding the General Plan threshold of 0.08 in/sec PPV or more at historic buildings within 60 feet of the project site and of 0.2 in/sec PPV or more at buildings of normal conventional construction located within 25 feet of the project site.

M
itigation Measures: In accordance with the Downtown Strategy 2040 FEIR and recommendations of the Noise and Vibration Assessment prepared by Illingworth & Rodkin, the following mitigation measure shall be implemented to reduce impacts related to generation of construction vibrations on adjacent historic buildings.

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MM NSE 2 Prior to the issuance of any grading, building or demolition permits (whichever occurs firs t), the project applicant shall implement a construction vibration monitoring plan to document conditions prior to, during, and after vibration generating construction activities. All plan tasks shall be undertaken under the direction of a licensed Professional Structural Engineer in the State of California and be in accordance with industry-accepted standard methods. The construction vibration monitoring plan shall include, but not be limited to, the following measures:

• The report shall include a description of measurement methods, equipment used, calibration certificates, and graphics as required to clearly identify vibration-monitoring locations.

• A list of all heavy construction equipment to be used for this project and anticipated time duration of using the equipment that is known to produce high vibration levels (clam shovel drops, vibratory rollers, hoe rams, large bulldozers, caisson drillings, loaded trucks, jackhammers, etc.) shall be submitted to the Director of Planning or Director’s designee of the Department of Planning, Building, and Code Enforcement by the contractor. This list shall be used to identify equipment and activities that would potentially generate substantial vibration and to define the level of effort required for continuous vibration monitoring. Phase demolition, earth-moving, and ground impacting operations so as not to occur during the same time period.

• Where possible, use of the heavy vibration-generating construction equipment shall be prohibited within 60 feet of any adjacent historical building and within 30 feet of any adjacent conventional building.

• Document conditions at all historic structures located within 60 feet of construction and at all conventional structures within 30 feet of construction prior to, during, and after vibration generating construction activities. All plan tasks shall be undertaken under the direction of a licensed Professional Structural Engineer in the State of California and be in accordance with industry-accepted standard methods. Specifically:

o Vibration limits shall be applied to vibration -sensitive structures located within 60 feet of any construction activities identified as sources of high vibration levels.

o Performance of a photo survey, elevation survey, and crack monitoring survey for each historic structure within 60 feet and for each conventional structure within 30 feet of construction activities. Surveys shall be performed prior to any construction activity, in regular intervals during construction, and after project completion, and shall include internal and external crack monitoring in structures, settlement, and distress, and shall document the condition of foundations, walls Eterna Tower Mixed-Use Development Chapter 3
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and other structural elements in the interior and exterior of said structures.

• Develop a vibration monitoring and construction contingency plan to identify structures where monitoring would be conducted, set up a vibration monitoring schedule, define structure-specific vibration limits, and address the need to conduct photo, elevation, and crack surveys to document before and after construction conditions. Construction contingencies shall be identified for when vibration levels approached the limits.

• At a minimum, vibration monitoring shall be conducted during demolition and excavation activities.

• Designate a person responsible for registering and investigating claims of excessive vibration. The contact information of such person shall be clearly posted on the construction site.

• Conduct a post-construction survey on structures where either monitoring has indicated high vibration levels or complaints of damage has been made.

Make appropriate repairs or compensation where damage has occurred as a result of construction activities. The survey shall be submitted to the Director of Planning, Building and Code Enforcement or the Director’s designee within 14 days of completion of repairs.

Implementation of the above measures would reduce the vibration impact to less than significant level.

c) Same Impact as Approved Project . Norman Y. Mineta San José International Airport is a public-use airport located approximately 1.7 miles northwest of the project site. According to the City’s new Airport Master Plan Environmental Impact Report, 41 the project site is located
outside of the 60 dBA CNEL/DNL contour line. According to Policy EC-1.11 of the City’s General Plan, the required safe and compatible threshold for exterior noise levels would be at or below 65 dBA CNEL/DNL for aircrafts. Therefore, the proposed project would be compatible with the City’s exterior noise standards for aircraft noise.

Assuming standard construction materials for aircraft noise below 60 dBA DNL, the future interior noise levels resulting from aircraft would below 45 dBA DNL. Therefore, future interior noise at the proposed building would be compatible with aircraft noise.

Noise and Vibration Chapter Conclusion

The Downtown Strategy 2040 EIR found that buildout would result in significant unavoidable noise impacts at existing noise-sensitive land uses adjacent to various roadway segments downtown due to increases in traffic noise. In addition, the Downtown Strategy 2040 FEIR identified significant construction vibration impacts that would be reduced to a less than significant level with implementation of the identified minimization measures. The noise and vibration impacts from the

41 David J. Powers & Associates, Inc., Integrated Final Environmental Impact Report, Amendment to Norman Y. Mineta San Jose International Airport Master Plan, April 2020.

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proposed development would be reduced to a less than significant level with the incorporation of mitigation measures and standard permit conditions consistent with the Downtown Strategy 2040 FEIR. The project would not result in new or more significant noise/vibration impacts than thos e identified in the Downtown Strategy 2040 EIR.

The project is located within the approved, single -bore, west option of the BART Extension Project.

The SEIS/SEIR for the BART Extension Project identified potential construction noise and vibration impacts and mitigation related to the temporary increase of ambient noise levels (NV-CNST-A through NV-CNST-O), exposure of persons to noise in excess of local or agency standards ( NV-CNST-A through NV-CNST-O), and exposure of persons to groundborne vibration (NV-CNST-P through NV- CNST-S). In addition, operational impacts and mitigation were identified related to exposure of persons to noise from ancillary facilities in excess of local or agency standards (NV-A: Implement Noise Reduction Treatments at Ancillary Facilities) and exposure of persons to groundborne vibration (Mitigation Measure NV -B: Reduce Groundborne Noise Levels ). Impacts related to exposure of persons to construction noise identified in the SEIS/SEIR remained significant and unavoidable even with mitigation.

While the proposed project would result in potentially significant impacts to noise and vibration, these would be reduced to a less than significant level through implementation of standard permit conditions and mitigation measures identified above. As a result, the proposed project would not result in new significant impacts to noise and vibration, compared to what was analyzed in the SEIS/SEIR. The project would have a less than significant impact with mitigation on noise and vibration and would not result in new or more severe noise and vibration impacts than identified in the SEIS/SEIR for the BART Extension Project.

Non-CEQA Effects

In December 2015, the California Supreme Court issued an opinion in the California Building Industry Association vs. Bay Area Air Quality Management District (CBIA vs. BAAQMD ) case that CEQA is primarily concerned with the impacts of a project on the environment, not the effects of the existing environment on a project. In light of this ruling, the effect of existing ambient noise on future users or residents of the project would not be considered an impact under CEQA. However, General Plan Policy EC-1.1 requires that existing ambient noise levels be analyzed for new residences, hotels, motels, residential care facilities, hospitals, and other institutional facilities, and that noise attenuation be incorporated into the project in order to reduce interior and exterior noise levels to acceptable limits.

The exterior noise threshold established in the City’s General Plan for new residential projects and for the residential component of mixed-use development is 60 dBA DNL at usable outdoor activity areas, excluding balconies and porches. For commercial uses, the City’s “normally acceptable” threshold for outdoor activity areas is 70 dBA DNL. The City requires that interior noise levels be maintained at 45 dBA DNL or less for residential land uses, and the Cal Green Code applies to the non-residential components of the proposed mixed-use project.

According to the site plan, residential units would be located on floors two through 26 of the proposed building. The commercial component would be located on the first floor.

The future noise environment at the project site would continue to result primarily from vehicular traffic along East Santa Clara Street and other local roadways. According to the traffic study completed Eterna Tower Mixed-Use Development Chapter 3
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for the Downtown San José Strategy Plan 2040 EIR,42 the traffic noise level increase at the project site would be 2 dBA DNL under each of the 2040 cumulative buildout alternatives.

Future Exterior Noise Environment within Project Site

The City of San José does not consider private balconies as outdoor use areas subject to the General Plan exterior noise thresholds. The only common use outdoor area associated with the proposed project would include the rooftop terrace. According to the site plan, the rooftop terrace would be divided into two sections: a covered section located towards the back of the building and an open s ection near the front.

The center of the open rooftop terrace would be set back approximately 65 feet from the centerline of East Santa Clara Street, while the center of the covered rooftop terrace would have a setback of approximately 110 feet from the centerline of the roadway. The site plan shows the elevation of the rooftop to be over 250 feet. Additionally, the site plan shows a six-foot barrier along the edge of the terrace. The overhang of the covered section would also provide some shielding. Future exterior noise levels at the centers of both rooftop terrace sections would be below 60 dBA DNL.

The future noise levels at the centers of the common use outdoor areas associated with the proposed residential building would meet the City’s normally acceptable threshold of 60 dBA DNL.

Future Interior Noise Environment

The State of California and the City of San José require that interior noise levels be maintained at 45 dBA DNL or less for residential land uses and that all non-residential land uses follow the requirements of the Cal Green Code. Interior noise levels vary depending on the design of the buildings and the selected construction materials and methods.

Residential Uses.

The residential units would be located on floors three through 26 of the proposed building. Units located along the southern façade nearest East Santa Clara Street would be set back from the centerline of the roadway by approximately 50 feet. At this distance, the units facing East Santa Clara Street would be exposed to future exterior noise levels up to 71 dBA DNL. Assuming windows to be partially open, future interior noise levels would be 56 dBA DNL.

S
tandard residential construction provides approximately 15 dBA of exterior-to -interior noise reduction, assuming the windows are partially open for ventilation. Standard construction with the windows closed provides approximately 20 to 25 dBA of noise reduction in interior spaces. Where exterior noise levels range from 60 to 65 dBA DNL, the inc lusion of adequate forced-air mechanical ventilation is often the method selected to reduce interior noise levels to acceptable levels by closing the windows to control noise. Where noise levels exceed 65 dBA DNL, forced-air mechanical ventilation systems and s ound-rated construction methods are normally required. Such methods or materials may include a combination of smaller window and door sizes as a percentage of the total building façade facing the noise source, sound -rated windows and doors, sound rated ext erior wall assemblies, and mechanical ventilation so windows may be kept closed at the occupant’s discretion.

Units along the northern façade would be shielded from traffic along East Santa Clara Street.

Additionally, the existing buildings located to the east and to the west of the proposed building would

42 City of San José, Downtown San José Strategy Plan 2040 Integrated Final Environmental Impact Report, December 2018.

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provide adequate shielding from traffic noise along North First Street and North Second Street for units located on the lower floors. However, units located on floors 7 through 26 would have some exposure to traffic noise along the surrounding roadways and nearby SR 87. Residential units on the lower floors located along the northern façade would be exposed to future exterior noise levels at or below 60 dBA DNL, while the upper floors would be exposed to future exterior noise levels up to 65 dBA DNL.

Assuming windows to be partially open, future interior noise levels would be up to 50 dBA DNL. To meet the interior noise requirements set forth by the City of San José of 45 dBA DNL, implementation of noise insulation features would be required for units facing East Santa Clara Street.

Commercial Retail Uses. Ground-level commercial uses are proposed as part of the project. Daytime hourly average noise levels at the ground level of the building exterior would be up 72 dBA Leq at the southern building façade, with day- night average noise levels up to 72 dBA DNL. Standard construction materials for commercial uses would provide about 25 dBA of noise reduction in interior spaces. The inclusion of adequate forced-air mechanical ventilation systems is normally required so that windows may be kept closed at the occupant’s discretion and would provide an additional 5 dBA reduction. The standard construction materials in combination with forced- air mechanical ventilation would satisfy the daytime threshold of 50 dBA Leq(1-hr).

C
onditions of Approval

The following noise insulation features shall be incorporated into the proposed project to reduce interior noise levels to 45 dBA DNL or less at residential interiors:

• The project’s design shall provide a suitable form of forced- air mechanical ventilation, as determined by the local building official, for all residential units on the project site, so that windows can be kept closed at the occupant’s discretion to control interior noise and achieve the interior noise standards.

• The project shall provide preliminary calculations indicating that the residential units along the northern and eastern façades of proposed building would require windows and doors with a minimum rating of 28 STC to meet the interior noise threshold of 45 dBA DNL.

• A qualified acoustical specialist shall prepare a detailed analysis of interior residential noise levels resulting from all exterior sources during the design phase pursuant to requirements set forth in the State Building Code. The study will also establish appropriate criteria for noise levels inside the commercial spaces affected by environmental noise. The study will review the final site plan, building elevations, and floor plans prior to construction and recommend building treatments to reduce residential interior noise levels to 45 dBA DNL or lower.

Treatments would include, but are not limited to, sound-rated windows and doors, sound-rated wall and window constructions, acoustical caulking, protected ventilation openings, etc. The specific determination of what noise insulation treatments are necessary shall be conducted on a unit-by-unit basis during final design of the project. Results of the analysis, including the description of the necessary noise control treatments, shall be submitted to the City, along with the building plans and approved design, prior to issuance of a building permit.

The implementation of the above noise insulation features would reduce interior noise levels to 45 dBA DNL or less.

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N. POPULATION AND HOUSING

Regulatory Framework

State

Housing-Element Law

State requirements mandating that housing be included as an element of each jurisdiction’s general plan is known as housing -element law. The Regional Housing Need Allocation (RHNA) is the state mandated process to identify the total number of housing units (by affordability level) that each jurisdiction must accommodate in its housing element. California housing-element law requires cities to: 1) zone adequate lands to accommodate its RHNA; 2) produce an inventory of sites that can accommodate its share of the RHNA; 3) identify governmental and non -governmental constraints to residential development; 4) develop strategies and a work plan to mitigate or eliminate those constraints; and 5) adopt a housing element and update it on a regular basis. 43 The City of San José
Housing Element and related land use policies were last updated in January 2015.

Regional and Local

Plan Bay Area 2040

Plan Bay Area 2040 is a long-range transportation, land-use, and housing plan intended support a growing economy, provide more housing and transportation choices, and reduce transportation related pollution and greenhouse gas (GHG) emissions in the Bay Area. Plan Bay Area 2040 promotes compact, mixed-use residential and commercial neighborhoods near transit, particularly within identified Priority Development Areas (PDAs).
44 The Association of Bay Area Governments (ABAG) allocates regional housing needs to each city and county within the nine-county San Francisco Bay Area, based on statewide goals. ABAG also develops forecasts for population, households, and economic activity in the Bay Area. ABAG, the Metropolitan Transportation Commission (MTC), and local jurisdiction planning staff created the Regional Forecast of Jobs, Population, and Housing, which is an integrated land use and transportation plan through the year 2040 (upon which Plan Bay Area 2040 is based).

General Plan

Policies in the General Plan have been adopted for the purpose of avoiding or mitigating population and housing impacts from development projects. There are no General Plan Policies related to population and housing that are applicable to the project.

Existing Setting

Based on information from the Department of Finance, the City of San José’s population was estimated to be 1,029,782 in January 2021 and had an estimated total of 37,442 housing units, with an average

43 California Department of Housing and Community Development. “Regional Housing Needs Allocation and Housing Elements” Accessed April 27, 2018. http://hcd.ca.gov/community-development/housingelement/index.shtml 44 Association of Bay Area Governments and Metropolitan Transportation Commission. “Project Mapper.” http://projectmapper.planbayarea.org/
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of 3.14 persons per household. 45 ABAG projects that the City’s population will reach 1,445,000 with 472,000 households by 2040.

A project can induce substantial population growth by: 1) proposing new housing beyond projected or planned development levels, 2) generating demand for housing as a result of new businesses, 3) extending roads or other infrastructure to previously undeveloped areas, or 4) removing obstacles to population growth (e.g., expanding capacity of a wastewater treatment plant beyond that necessary to serve planned growth). The General Plan EIR concluded that the potential for direct growth inducing impacts from buildout of the General Plan would be minimal because planned growth would consist entirely of development within the City’s existing Urban Growth Boundary and Urban Service Area.

Impacts and Mitigation

Thresholds per CEQA Checklist

14. POPULATION AND HOUSING. Would the project:
a) Induce substantial unplanned population
growth in an area, either directly (for
example, by proposing new homes and
businesses) or indirectly (for example,
through extension of roads or other
infrastructure)?
X 1, 2
b) Displace substantial numbers of existing
people or housing, necessitating the
construction of replacement housing
elsewhere?
X 1, 2

Explanation

As discussed below, the proposed project would not result in a new or greater impact on population and housing than was previously disclosed in the Downtown Strategy 2040 FEIR.

a) Same Impact as Approved Project. The project proposes up to 192 units with total future population at the proposed project site estimated at 614 individuals (based on 3.2 residents per unit). This does not represent substantial population growth. The General Plan EIR concluded that the potential for direct growth inducing impacts from buildout of the General Plan would be minimal because planned growth would consist entirely of development within the City’s existing Urban Growth Boundary and Urba n Service Area. With implementation of the proposed density bonus, the development is consistent with the project site’s General Plan land use designation and, therefore , would not add growth beyond what was anticipated from buildout of the General Plan. Please refer to Section K. Land Use and Planning.

45State of California, Department of Finance. “E-5 Population and Housing Estimates for Cities, Counties, and the State— January 1, 2011-2021.” January 2021. Accessed July 2021. http://www.dof.ca.gov/Forecasting/Demographics/Estimates/E-5/ Eterna Tower Mixed-Use Development Chapter 3
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b) Same Impact as Approved Project. The project consists of the development of residential on an infill site that contains two, two-story buildings . The project site does not contain any housing. Thus, the residential project would not displace existing housing or require the construction of replacement housing.

Population and Housing Chapter Conclusion

The project would have the same less than significant impact on population and housing as identified in the Downtown Strategy 2040 EIR. The project would not result in new or more significant population or housing impacts than those in the Downtown Strategy 2040 EIR.

The project is located within the approved, single -bore, west option of the BART Extension Project.

The SEIS/SEIR for the BART Extension Project did not identify any potentially significant impacts related to population and housing. As a result, the proposed project would not result in new significant impacts to population and housing compared to what was analyzed in the SEIS/SEIR. The project would have a less than significant impact on population and housing and would not result in new or more severe population and housing impacts than identified in the SEIS/SEIR for the BART Extension Project.

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O. PUBLIC SERVICES

Regulatory Framework

State

California Government Code Section 65996

California Government Code Section 65996 stipulates that an acceptable method of offsetting a project’s effect on the adequacy of school facilities is the payment of a school impact fee prior to issuance of a building permit. The legislation states that payments of school impact fees “are hereby deemed to provide full and complete school facilities mitigation” under CEQA [§65996(b)]. The school district is responsible for implementing the specific methods of school impact mitigation under the Government Code. The CEQA documents must identify that school impact fees and the school districts’ methods of implementing measures specified by Government Code 65996 would adequately mitigate project-related increases in student enrollment.

Quimby Act – California Code Sections 66475-66478

The Quimby Act (California Government Code Sections 66475-66478) was approved by the California legislature to preserve open space and parkland in the State. The Quimby Act authorizes local governments to establish ordinances requiring developers of new subdivisions to dedicate parks, pay an in -lieu fee, or perform a combination of the two. As described below, the City has adopted a Parkland Dedication Ordinance and a Park Impact Ordinance, consistent with the Quimby Act.

Local

Parkland Dedication Ordinance and Park Impact Ordinance

The City of San José has adopted the Parkland Dedication Ordinance (PDO, Municipal Code Chapter

19.38) and Park Impact Ordinance (PIO, Municipal Code Chapter 14.25), requiring new residential development to either dedicate sufficient land to serve new residents or pay fees to offset the increased costs of providing new park facilities for new development. Under the PDO and PIO, a project can satisfy half of its total parkland obligation by providing private recreational facilities onsite. For projects exceeding 50 units, the City decides whether the project will dedicate land for a new public park site or provide a fee in-lieu of land dedication. The acreage of parkland required is based on the minimum acreage dedication formula outlined in the PDO.

General Plan Policies

Policies in the General Plan have been adopted for the purpose of avoiding or mitigating public service impacts from development projects. Policies applicable to the project are presented below.

Envision San José 2040 Relevant Public Service Policies Policy CD-5.5 Include design elements during the development review process that address security, aesthetics, and safety. Safety issues include, but are not limited to, minimum clearances around buildings, fire protection measures such as peak load water requirements, construction techniques, and minimum standards for vehicular Eterna Tower Mixed-Use Development Chapter 3
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Envision San José 2040 Relevant Public Service Policies and pedestrian facilities and other standards set forth in local, state, and federal regulations.

Policy FS-5.6 When reviewing major land use or policy changes, consider the availability of police and fire protection, parks and recreation and library services to the affected area as well as the potential impacts of the project on existing service levels.

Policy ES-2.2 Construct and maintain architecturally attractive, durable, resource-efficient, and environmentally healthful library facilities to minimize operating costs, foster learning, and express in built form the significant civic functions and spaces that libraries provide for the San José community. Library design should anticipate and build in flexibility to accommodate evolving community needs and evolving methods for providing the community with access to information sources. Provide at least 0.59 SF of space per capita in library facilities.

Policy ES-3.1 Provide rapid and timely Level of Service (LOS) response time to all emergencies:

1. For police protection, use as a goal a response time of six minutes or less for 60 percent of all Priority 1 calls, and of eleven minutes or less for 60 percent of all Priority 2 calls.

2. For fire protection, use as a goal a total response time (reflex) of eight minutes and a total travel time of four minutes for 80 percent of emergency incidents.

Policy ES-3.9 Implement urban design techniques that promote public and property safety in new development through safe, durable construction and publicly-visible and accessible spaces.

Policy ES-3.11 Ensure that adequate water supplies are available for fire-suppression throughout the City. Require development to construct and include all fire suppression infrastructure and equipment needed for their projects. PR-1.1 Provide 3.5 acres per 1,000 population of neighborhood/community serving parkland through a combination of 1.5 acres of public park and 2.0 acres of recreational school grounds open to the public per 1,000 San José residents.

Policy PR-1.1 Provide 3.5 acres per 1,000 population of neighborhood/community serving parkland through a combination of 1.5 acres of public park and 2.0 acres of recreational school grounds open to the public per 1,000 San José residents.

Policy PR-1.2 Provide 7.5 acres per 1,000 population of citywide /regional park and open space lands through a combination of facilities provided by the City of San José and other public land agencies.

Policy PR-1.12 Regularly update and utilize San José’s Parkland Dedication Ordinance/Parkland Impact Ordinance (PDO/PIO) to implement quality facilities.

Policy PR-2.4 To ensure that residents of a new project and existing residents in the area benefit from new amenities, spend Park Dedication Ordinance (PDO) and Park Impact Ordinance (PIO) fees for neighborhood serving elements (such as playgrounds/tot- lots, basketball courts, etc.) within a ¾ mile radius of the project site that generates the funds.

Policy PR-2.5 Spend, as appropriate, PDO/PIO fees for community serving elements (such as soccer fields, community gardens, community centers, etc.) within a 3-mile radius of the residential development that generates the PDO/PIO funds.

Existing Setting

Fire Protection: F ire protection services are provided to the project site by the San José Fire Department (SJFD). The closest fire station to the project site is Station #1, located about 0.3 miles northwest of the site at 225 North Market Street.

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Police Protection: P olice protection services are provided to the project site by the San José Police Department (SJPD) headquartered at 201 West Mission Street. The City has four patrol divisions and 16 patrol districts. Patrols are dispatched from police headquarters and the patrol districts consist of 83 patrol beats, which include 357 patrol beat building blocks.

Parks: P arks and recreation facilities within the project area are provided by the City of San José. The closest park facility to the project site is St. Jame s Park, a 6.8-acre City neighborhood park located about 650 feet north of the project site. It contains youth playgrounds, community center, barbecue pits, restrooms, an exercise course, and picnic areas.

Schools: T he project site is in the San José Unified School District (SJUSD) area boundary. This district operates a combined 42 schools (27 elementary schools, six middle schools, and nine high schools) serving approximately 31,524 students.46 Schools serving the project site are presented below.

Schools in Project Area
Elementary Middle High
Horace Mann Elementary School
55 North Seventh Street
San José, CA 95112
Muwekma Ohlone Middle School
805 North Second Street
San José, CA 95112
San José High School
275 North 24th Street
San José, CA 95116

State law (Government Code §65996) identifies the payment of school impact fees as an acceptable method of offsetting a project’s impact on school facilities. In San José, developers can either negotiate directly with the affected school district or make a payment per square foot of multi -family units and new commercial uses , prior to issuance of a building permit. The school district is responsible for implementing the specific methods for mitigating school impacts under the Government Code.

Librar
ies : The City of San José is served by the San José Public Library System. The San José Public Library System consists of one main library (Dr. Martin Luther King Jr.) and 22 branch libraries. The nearest public library is the Dr. Martin Luther King Jr. Library, approximately 0.28 miles southeast of the project site.

I
mpacts and Mitigation

Thresholds per CEQA Checklist

15. PUBLIC SERVICES. Would the project result in substantial adverse physical impacts associated with the provision of new or physically altered governmental facilities, need for new or physically altered governmental facilities, the construction of which could cause significant environmental impacts, in order to maintain acceptable service ratios, response times or other performance objectives for any of the public services:
a) Fire protection? X 1, 2
b) Police protection? X 1, 2

46 Envision San José 2040 General Plan Final Program EIR, certified November 2011.

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Explanation

As discussed below, the proposed project would not result in a new or greater impact public services than was previously disclosed in the Downtown Strategy 2040 FEIR.

a) Same Impact as Approved Project. The project proposes to redevelop the site, which would intensify the use of the site and generate additional occupants in the area. This would result in an incremental increase in the demand for fire protection services. The project site, however, is currently served by the SJFD and the amount of proposed development represents a small fraction of the total growth identified in the General Plan and downtown area. The project, by itself, would not preclude the SJFD from meeting their service goals and would not require the construction of new or expanded fire facilities. In addition, the proposed project would be constructed in accordance with current building and Fire codes and would be required to be maintained in accordance with applicable City policies to promote public and property safety.

Therefore, the proposed mixed-use development would not significantly impact fire protection services or require the construction of new or remodeled facilities.

The General Plan EIR concluded that, with the buildout of the General Plan, additional fire staff and equipment may be required to adequately serve a larger population, but no new fire stations would be required other than those already planned. Periodic operation and capital improvements may be required for fire protection services, but those improvements would not result in significant environmental impacts.

b) Same Impact as Approved Project. The project proposes to redevelop the site, which would intensify the use of the site and generate additional occupants in the area. This would result in an incremental increase in the demand for police protection services . The site, however, is currently served by the SJPD and the amount of proposed development represents a relatively small fraction of the total growth projected in the General Plan and the downtown area. The project, by itself, would not preclude the SJPD from meeting their service goals and would not require the construction of new or expande d fire facilities. In addition, the proposed project would be constructed in accordance with current building codes and would be required to be maintained in accordance with applicable City policies to promote public and property safety.

The General Plan EIR and Downtown Strategy 2040 concluded that buildout under the General Plan and Downtown Strategy could require new police facilities, which will require supplemental environmental review but are not anticipated to result in significant, adverse environmental impacts. Periodic operation and capital improvements may be required for police services, but those improvements would not result in significant environmental impacts.

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Finally, the project applicant would consult with the SJPD during final project design to assure appropriate security measures are incorporated. Therefore, the proposed mixed-use development would not significantly impact police protection services or require the construction of new or remodeled facilities.

c) Same Impact as Approved Project. The project proposes to redevelop the site with residential and commercial uses, which would potentially generate new students. The project site is currently served by the SJUSD. The project, by itself, would not preclude the SJUSD from meeting their service goals and would not require the construction of new or expanded schools.

In addition, in accordance with California Government Code Section 65996, the developer would be required to pay a school impact fee to the School District to offse t the increased demands on school facilities caused by the proposed project. Development fees for SJUSD are currently set at a base-level of $3.48/square foot for new residential development and $0.56/square foot for commercial/retail development. 47

d) Same Impact as Approved Project . The proposed residential development w ould generate additional park users. While occupants of the site may utilize nearby parks, they are unlikely to place a major physical burden on these facilities. The City’s Parkland Dedication Ordinance and Park Impact Ordinance require residential developers to dedicate public park land or pay in-lieu fees (or both) to compensate for the increase in demand for neighborhood parks.

e) Same Impact as Approved Project. Although the project would incrementally increase residential development and population growth, the proposed 192 units would not require the construction or expansion of additional public facilities or libraries. With implementation of the proposed density bonus, the project is consistent with the General Plan designation for the site; the General Plan EIR concluded that development allowed under the General Plan would be adequately served by existing and planned library facilities.

Public Services Chapter Conclusion

The Downtown Strategy 2040 EIR found no significant impacts to public services. The project would not result in new or more significant population or housing impacts than those in the Downtown Strategy 2040 EIR.

The project is located within the approved, single -bore, west option of the BART Extension Project.

The SEIS/SEIR for the BART Extension Project did not identify any potentially significant impacts related to public services. As a result, the proposed project would not result in new significant impacts to public services compared to what was analyzed in the SEIS/SEIR. The project would have a less than significant impact on public services and would not result in new or more severe public services impacts than identified in the SEIS/SEIR for the BART Extension Project.

47 SJUSD no-longer posts multi-unit rates, rather, the developer is directed to contact the District for an assessment of fees.

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P. RECREATION

Regulatory Framework

State

Assembly Bill 1191 and 1359 – Quimby Act

The Quimby Act, which is within the Subdivision Map Act, authorizes the legislative body of a city or county to require the dedication of land or impose fees for park or recreational purposes as a condition to the approval of a tentative or parcel subdivision map, if specified requirements are met. On September 8
th, 2015 Governor Brown signed the AB 1359, the purpose of which was to amend the existing Quimby Act to authorize local governments to spend Quimby Act funds beyond parks that serve the development from where the funds were sourced. To reallocate the funds in this manner, AB 1359 requires the legislative body to hold a public hearing before using fees as prescribed in the bill.

Subsequently, on September 8
th, 2015 Governor Brown signed the AB 1191, the purpose of which was to amend the existing Quimby Act to authorize the legislative bodies of cities and counties to require land dedication or to impose fees for future park or recreational purposes as a required condition of approval of a tentative or parcel subdivision map. AB 1191 also eliminated the requirement for a local municipality to repay any unspent funds accrued through the Quimby Act after a five -year period resulting from such fees.

Local

Parkland Dedication Ordinance and Park Impact Ordinance

The City of San José has adopted the Parkland Dedication Ordinance and Park Impact Ordinance, which require residential developers to dedicate public park land or pay in-lieu fees (or both) to compensate for the increase in demand for neighborhood parks. See Section O. Public Services for additional discussion.

Activate SJ Strategic Plan

The Activate SJ Strategic Plan was developed by the City of San José as a replacement to the Greenprint 2009 Plan. The Plan serves as an outline of goals and policies of the City’s Department of Parks, Recreation, and Neighborhood Services, and is intended to act as a 20 -year strategic plan in alignment with the Envision San José 2040 General Plan. The Activate SJ Strategic Plan will be updated at five-year intervals. The Plan identifies five major guiding principles, Stewardship, Nature, Equity & Access, Identity, and Public Life, to achieve the City’s goal of connecting people through parks, recreation, and neighborhood services.

General Plan Policies

Policies in the General Plan have been adopted for the purpose of avoiding or mitigating recreation impacts from development projects. Policies applicable to the proposed project are presented below.

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Envision San José 2040 Relevant Recreation Policies
Policy PR-1.1 Provide 3.5 acres per 1,000 population of neighborhood/community serving parkland through a combination of 1.5 acres of public park and 2.0 acres of recreational school grounds open to the public per 1,000 San José residents.

Policy PR-1.2 Provide 7.5 acres per 1,000 population of citywide/regional park and open space lands through a combination of facilities provided by the City of San José and other public land agencies.

Policy PR-1.3 Provide 500 SF per 1,000 population of community center space.

Policy PR-2.4 To ensure that residents of a new project and existing residents in the area benefit from new amenities, spend Park Dedication Ordinance (PDO) and Park Impact Ordinance (PIO) fees for neighborhood serving elements (such as playgrounds/tot- lots, basketball courts, etc.) within a 3/4 mile radius of the project site that generates the funds.

Policy PR-2.5 Spend, as appropriate, PDO/PIO fees for community serving elements (such as soccer fields, dog parks, sport fields, community gardens, community centers, etc.) within a 3-mile radius of the residential development that generates the PDO/PIO funds.

Policy CD-6.5 Design quality publicly-accessible open spaces at appropriate locations that enhance the pedestrian experience and attract people to the Downtown. Use appropriate design, scale, and edge treatment to define, and create publicly-accessible spaces that positively contribute to the character of the area and provide public access to community gathering, recreational, artistic, cultural, or natural amenities.

Existing Setting

The City of San José owns and maintains approximately 3,502 acres of parkland, including neighborhood parks, community parks, and regional parks. The City has 51 community centers and over 57 miles of trails. The City’s Department of Parks, Recreation, and Neighborhood Services is responsible for development, operation, and maintenance of all City park facilities.

St. James Park, a 6.8-acre City neighborhood park, is located to the north of the site between East St.

John Street and East St James Street. It contains youth playgrounds, a community center, barbecue pits, restrooms, an exercise course, and picnic areas.

Impacts and Mitigation

Thresholds per CEQA Checklist

16. RECREATION. Would the project:
a) Would the project increase the use of
existing neighborhood and regional parks or
other recreational facilities such that
substantial physical deterioration of the
facility would occur or be accelerated?
X 1, 2
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ENVIRONMENTAL IMPACTS
New
Potentially
Significant
Impact
New
Less Than
Significant
With
Mitigation
Incorporated
New
Less Than
Significant
Impact
Same
Impact as
Approved
Project
Less
Impact
than
Approved
Project
Checklist
Source(s)
b) Does the project include recreational
facilities or require the construction or
expansion of recreational facilities which
might have an adverse physical effect on the
environment?
X 1, 2

Explanation

As discussed below, the proposed project would not result in a new or greater impact s related to recreation than was previously disclosed in the Downtown Strategy 2040 FEIR.

a) Same Impact as the Approved Project. The proposed project would generate new residents that would utilize nearby parks, however, the project, by itself, would not physically deteriorate or require the construction or expansion of park facilities. The Park Dedication Ordinance and Park Impact Ordinance require residential developers to dedicate public park land or pay in- lieu fees (or both) to compensate for the increase in demand for neighborhood parks. b) Same Impact as the Approved Project. The City’s Parkland Dedication Ordinance and Park Impact Ordinance require residential developers to dedicate public park land or pay in-lieu fees (or both) to compensate for the increase in demand for neighborhood parks. The amount of proposed development represents a small fraction of the total growth identified in the General Plan. However, the project would be required to make a payment of in-lieu fees, by generating increase population that would utilize park services.

Recreation Chapter Conclusion

The Downtown Strategy 2040 EIR found no significant impacts to public services, which included recreational facilities. The project would not result in new or more significant impacts to recreational facilities than those in the Downtown Strategy 2040 EIR.

The project is located within the approved, single -bore, west option of the BART Extension Project.

The SEIS/SEIR for the BART Extension Project did not identify any potentially significant impacts related to recreation. As a result, the proposed project would not result in new significant impacts to recreation, compared to what was analyzed in the SEIS/SEIR . The project would have a less than significant impact on recreation and would not result in new or more severe recreation impacts than identified in the SEIS/SEIR for the BART Extension Project.

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Q. TRANSPORTATION
Regulatory Framework

State

Regional Transportation Plan

The Metropolitan Transportation Commission (MTC) is the transportation planning, coordinating, and financing agency for the nine-county San Francisco Bay Area, including Santa Clara County. MTC is charged with regularly updating the Regional Transportation Plan, a comprehensive blueprint for the development of mass transit, highway, airport, seaport, railroad, bicycle, and pedestrian facilities in the region. MTC and ABAG adopted Plan Bay Area 2040 in July 2017, which includes a Regional Transportation Plan to guide regional transportation investment for revenues from federal, state, regional and local sources through 2040.

Senate Bill 743

SB 743 establishes criteria for determining the significance of transportation impacts using a vehicle miles traveled metric intended to promote the reduction of GHG emissions, the development of multimodal transportation networks, and a diversity of land uses. Specifically, SB 743 requires the replacement of automobile delay—described solely by level of service or similar measures of vehicular capacity or traffic congestion—with VMT as the recommended metric for determining the significance of transportation impacts. The Governor’s Office of Planning and Research (OPR) approved the CEQA Guidelines implementing SB 743 on December 28, 2018. Local jurisdictions were required to implement a VMT policy by July 1, 2020. SB 743 did not authorize OPR to set specific VMT impact thresholds, but it did direct OPR to develop guidelines for jurisdictions to utilize. CEQA Guidelines Section 15064.3(b)(1) describes factors that might indicate whether a development project’s VMT may be significant. Projects located within one-half (0.5) mile of transit are generally be considered to have a less than significant transportation impact based on OPR guidance.

Regional and Local

Final Plan Bay Area 2040

The Metropolitan Transportation Commission (MTC) and the Association of Bay Area Governments (ABAG) adopted the Final Plan Bay Area 2040 in July 2017. The Final Plan Bay Area 2040 is an updated long-range Regional Transportation Plan and Sustainable Communities Strategy for the nine- county San Francisco Bay Area. This plan focuses on the following strategies:

• Forecasting transportation needs through the year 2040. • Preserving the character of our diverse communities.
• Adapting to the challenges of future population growth.

This effort grew out of the California Sustainable Communities and Climate Protection Act of 2008 (California Senate Bill 375, Steinberg), which requires each of the state’s 18 metropolitan areas – including the Bay Area – to reduce greenhouse gas emissions from cars and light trucks. Plan Bay Area Eterna Tower Mixed-Use Development Chapter 3
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2040 is a limited and focused update of the region’s previous integrated transportation and land use plan, Plan Bay Area, adopted in 2013.

Santa Clara County Congestion Management Program

In accordance with California Statute (Government Code 65088), Santa Clara County has established a Congestion Management Program (CMP). The intent of the CMP legislation is to develop a comprehensive transportation improvement program among local jurisdictions to reduce traffic congestion and improve land use decis ion-making and air quality. VTA serves as the Congestion Management Agency (CMA) for Santa Clara County and maintains the County’s CMP.

Council Policy 5-1 Transportation Analysis

In alignment with SB 743 and the City’s goals in the Envision San José 2040 General Plan, the City has adopted a new “ Transportation Analysis Policy” (Council Policy 5-1) to replace the former Transportation Level of Service Policy (Council Policy 5-3). The new policy establishes the thresholds for transportation impacts under CEQA based on VMT rather than intersection level of service (LOS).

VMT is the total miles of travel by personal motorized vehicles from a project in a day. The intent of this change in policy is to shift the focus of transportation analysis under CEQA from vehicle delay and roadway capacity to a reduction in vehicle emissions and the creation of multimodal networks that support integrated land uses.
48 According to the policy, an employment facility (e.g., office, R & D) or a residential project’s transportation impact would be less than significant if the project VMT is 15 percent or more below the existing average regional VMT per employee, or the existing average citywide or regional per capita VMT respectively. For industrial projects (e.g., warehouse, manufacturing, distribution), the impact would be less than significant if the project VMT is equal to or less than existing average regional per capita VMT per employee. The threshold for a retail project is whether it generates net new regional VMT, as new retail typically redistributes existing trips and miles traveled as opposed to inducing new travel. If a project’s VMT does not meet the established thresholds, mitigation measures would be required, where feasible.

The policy also requires preparation of a Local Transportation Analysis (LTA) to analyze non-CEQA transportation issues, including local transportation operations, intersection level of service, and site access and circulation. The LTA also addresses CEQA issues related to pedestrian, bicycle access, and transit.

Screening criteria have been established to determine which projects require a detailed VMT analysis.

If a project meets the relevant screening criteria, it is considered to a have a less than significant VMT impact. Under Policy 5-1, the screening criteria are as follows:

• Small Infill Projects,
• Local-Serving Retail,
• Local-Serving Public Facilities,
• Transit Supportive Projects in Planned Growth Areas with Low VMT and High -Quality Transit,
• Restricted Affordable, Transit Supportive Residential Projects in Planned Growth Areas with High Quality Transit, and

48 The new policy took effect on March 29, 2018.

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• Transportation Projects that reduce or do not increase VMT.

General Plan

Policies in the General Plan have been adopted for the purpose of avoiding or mitigating transportation impacts from development projects. Policies applicable to the proposed project are presented below.

Envision San José 2040 Relevant Transportation Policies Policy IE-1.5 Promote the intensification of employment activities on sites in close proximity to transit facilities and other existing infrastructure, in particular within the Downtown, North San José, the Berryessa International Business Park and Edenvale.

Policy TR-1.1 Accommodate and encourage use of non-automobile transportation modes to achieve San José’s mobility goals and reduce vehicle trip generation and vehicle miles traveled (VMT).

Policy TR-1.2 Consider impacts on overall mobility and all travel modes when evaluating transportation impacts of new developments or infrastructure projects.

Policy TR-1.4 Through the entitlement process for new development, projects shall be required to fund or construct needed transportation improvements for all transportation modes giving first consideration to improvement of bicycling, walking and transit facilities and services that encourage reduced vehicle travel demand. • Development proposals shall be reviewed for their impacts on all transportation modes through the study of Vehicle Miles Traveled (VMT), Envision San José 2040 General Plan policies, and other measures enumerated in the City Council Transportation Analysis Policy and its Local Transportation Analysis. Projects shall fund or construct proportional fair share mitigations and improvements to address their impacts on the transportation systems.
• The City Council may consider adoption of a statement of overriding considerations, as part of an EIR, for projects unable to mitigate their VMT impacts to a less than significant level. At the discretion of the City Council, based on CEQA Guidelines Section 15021, projects that include overriding benefits, in accordance with Public Resources Code Section 21081 and are consistent with the General Plan and the Transportation Analysis Policy 5-1 may be considered for approval. The City Council will only consider a statement of overriding considerations for (i) market- rate housing located within General Plan Urban Villages; (ii) commercial or industrial projects; and (iii) 100% deed-restricted affordable housing as defined in General Plan Policy IP-5.12. Such projects shall fund or construct multimodal improvements, which may include improvements to transit, bicycle, or pedestrian facilities, consistent with the City Council Transportation Analysis Policy 5-1.
• Area Development Policy. An “area development policy” may be adopted by the City Council to establish special transportation standards that identifies development impacts and mitigation measures for a specific geographic area. These policies may take other names or forms to accomplish the same purpose.

Policy TR-1.5 Design, construct, operate, and maintain public streets to enable safe, comfortable, and attractive access and travel for motorists and for pedestrians, bicyclists, and transit users of all ages, abilities, and preferences.

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Envision San José 2040 Relevant Transportation Policies Policy TR-1.6 Require that public street improvements provide safe access for motorists and pedestrians along development frontages per current City design standards.

Policy TR-2.8 Require new development where feasible to provide on-site facilities such as bicycle storage and showers, provide connections to existing and planned facilities, dedicate land to expand existing facilities or provide new facilities such as sidewalks and/or bicycle lanes/paths, or share in the cost of improvements.

Policy TR-3.3 As part of the development review process, require that new development along existing and planned transit facilities consist of land use and development types and intensities that contribute towards transit ridership. In addition, require that new development is designed to accommodate and to provide direct access to transit facilities.

Policy TR-5.3 Development projects’ effects on the transportation network will be evaluated during the entitlement process and will be required to fund or construct improvements in proportion to their impacts on the transportation system.

Improvements will prioritize multimodal improvements that reduce VMT over automobile network improvements.
• Downtown. Downtown San José exemplifies low-VMT with integrated land use and transportation development. In recognition of the unique position of the Downtown as the transit hub of Santa Clara County, and as the center for financial, business, institutional and cultural activities, Downtown projects shall support the long-term development of a world class urban transportation network.

Policy TR-8.4 Discourage, as part of the entitlement process, the provision of parking spaces significantly above the number of spaces required by code for a given use.

Policy TR-9.1 Enhance, expand and maintain facilities for walking and bicycling, particularly to connect with and ensure access to transit and to provide a safe and complete alternative transportation network that facilitates non-automobile trips.

Policy CD-1.3 Further the Major Strategies of this Plan to focus growth in appropriate locations; design complete streets for people; promote Grand Boulevards, Main Streets, and Downtown; support transit; and foster a healthful community.

Policy CD-1.9 Give the greatest priority to developing high-quality pedestrian facilities in areas that will most promote transit use and bicycle and pedestrian activity. In pedestrian-oriented areas such as Downtown, Urban Villages, or along Main Streets, place commercial and mixed-use building frontages at or near the street- facing property line with entrances directly to the public sidewalk, provide high- quality pedestrian facilities that promote pedestrian activity, including adequate sidewalk dimensions for both circulation and outdoor activities related to adjacent land uses, a continuous tree canopy, and other pedestrian amenities. In these areas, strongly discourage parking areas located between the front of buildings and the street to promote a safe and attractive street facade and pedestrian access to buildings.

Policy CD-2.3 Enhance pedestrian activity by incorporating appropriate design techniques and regulating uses in private developments, particularly in Downtown, Urban Villages, Main Streets, and other locations where appropriate. • Include attractive and interesting pedestrian-oriented streetscape features such as street furniture, pedestrian scale lighting, pedestrian oriented way- finding signage, clocks, fountains, landscaping, and street trees that provide shade, with improvements to sidewalks and other pedestrian ways.

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Envision San José 2040 Relevant Transportation Policies • Strongly discourage drive-through services and other commercial uses oriented to occupants of vehicles in pedestrian-oriented areas. Uses that serve the vehicle, such as car washes and service stations, may be considered appropriate in these areas when they do not disrupt pedestrian flow, are not concentrated in one area, do not break up the building mass of the streetscape, are consistent with other policies in this Plan, and are compatible with the planned uses of the area.
• Provide pedestrian connections as outlined in the Community Design Connections Goal and Policies.
• Locate retail and other active uses at the street level. • Create easily identifiable and accessible building entrances located on street frontages or paseos.
• Accommodate the physical needs of elderly populations and persons with disabilities.
• Integrate existing or proposed transit stops into project designs.

Policy CD-2.11 Within the Downtown and Urban Village Area Boundaries, consistent with the minimum density requirements of the applicable Land Use / Transportation Diagram designation, avoid the construction of surface parking lots except as an interim use, so that long-term development of the site will result in a cohesive urban form. In these areas, whenever possible, use structured parking, rather than surface parking, to fulfill parking requirements. Encourage the incorporation of alternative uses, such as parks above parking structures.

Policy CD-3.3 Within new development, create a pedestrian friendly environment by connecting the internal components with safe, convenient, accessible, and pleasant pedestrian facilities and by requiring pedestrian connections between building entrances, other site features, and adjacent public streets.

Policy CD-6.9 Recognize Downtown as the hub of the County’s transportation system and design buildings and public spaces to connect and maximize use of all types of transit.

Design Downtown pedestrian and transit facilities to the highest quality standards to enhance the aesthetic environment and to promote walking, bicycling, and transit use. Design buildings to enhance the pedestrian environment by creating visual interest, fostering active uses, and avoiding prominence of vehicular parking at the street level.

Policy LU-2.2 Include within the Envision General Plan Land Use / Transportation Diagram significant job and housing growth capacity within the following identified Growth Areas:
• Downtown – The City’s Downtown Strategy plans for ambitious job and housing growth capacity in the Downtown area to reinforce its role as San Jose’s civic, cultural and symbolic center and to support key infrastructure investments, including the planned BART and High-Speed Rail systems.

Policy IP-2.8 Allow development of residential units at the density and in the form approved in land use entitlements in place upon adoption of the Envision San José 2040 General Plan, including capacity specified in the adopted Downtown Strategy, North San José Area Development Policy, Evergreen-East Hills Development Eterna Tower Mixed-Use Development Chapter 3
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Envision San José 2040 Relevant Transportation Policies Policy, Specific Plans, and potential dwelling unit yield from residential properties identified on the City’s Vacant Land Inventory. When the City Council commences the second Horizon of the Envision General Plan, new or revised proposals for development on sites with previously approved residential entitlements should conform to the Land Use / Transportation Diagram.

Existing Setting

The project site is located within the Downtown Core Area Boundary. The Downtown Strategy 2040 FEIR exempts development within the Downtown Core Area Boundary from the City’s Transportation Impact Policy and related traffic mitigation requirements. The City’s Department of Public Works concluded that the project would not require a local transportation analysis because no onsite parking and/or off- site parking arrangements with neighboring parking lot owners are proposed for the project.
49 Transportation Facilities

The project site is located along East Santa Clara Street between North First Street and North Second Street. In the project vicinity, East Santa Clara Street consists of a four-lane, two-directional roadway.

North First Street and North Second Street are two-lane, one-directional roadways.

Sidewalks extend along both sides of East Santa Clara Street as well as other streets in the immediate project area. Pedestrian crosswalks with signal heads and accessible ramps are located on each leg of the nearby signalized intersections.

Striped bicycle routes are provided along East St. John Street and portions of North Second Street. The City is proposing to install a bike path along North Second Street. The San José Better Bike Plan 2025 identifies Class II bike lanes along North Second Street in the project vicinity.

The project lies within close proximity to major transit services. Existing transit service to the study area is provided by the Santa Clara Valley Transportation Authority (VTA), Caltrain, Altamont Commuter Express (ACE), and Amtrak. The downtown San José area is served directly by many local bus routes. The nearest bus stops to the project site are located at the intersections of North Second Street/East Santa Clara Street (Local Routes 72 & 73), East Santa Clara Street/First Street (Local Routes 22, 23, 64A, and 64 B, as well as Rapid Routes 500, 522, and 523), and North First Street/East Santa Clara Street (Local Routes 72 & 73).

The St. James Light Rail Train (LRT) Station is located approximately 885 feet north of the project site on North First Street at St. James Park. The San Antonio LRT station is located approximately 1,300 feet south of the project site on South Second Street. The LRT and Caltrain services provide access to the Diridon Transit Center, located approximately 0.81 miles west of the project site at Cahill Street. Connections between local and regional bus routes, light rail lines, and commuter rail lines are provided within the Diridon Transit Center. Proximity to transit would encourage the use of alternative methods of transportation to and from the site reducing transportation-related energy use. Proximity to public transit would encourage the use of this alternative mode of transportation to and from the site.

49 Department of Public Works email to Hexagon Transportation Consultants (Christy Cheung, 12/22/20).

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Impacts and Mitigation

Thresholds per CEQA Checklist

17. TRANSPORTATION. Would the project:
a) Conflict with program plan, ordinance or
policy addressing the circulation system,
including transit, roadway, bicycle and
pedestrian facilities?
X 1, 2, 3
b) Would the project conflict or be inconsistent
with CEQA Guidelines Section 15064.3,
subdivision (b)?
X 1, 2, 3
c) Substantially increase hazards due to a
geometric design feature (e.g., sharp curves or
dangerous intersections) or incompatible uses
(e.g., farm equipment)?
X 1, 2
d) Result in inadequate emergency access? X 1, 2,

Explanation

As discussed below, the proposed project would not result in a new or greater impact on transportation than was previously disclosed in the Downtown Strategy 2040 FEIR.

a) Same Impact as Approved Project. As described previously, the project site is located near major transit services, including LRT, bus routes, and Diridon Station.

Existing sidewalks along East Santa Clara Street, First Street, and Second Street as well as crosswalks at the nearby signalized intersections provide pedestrian access to and from the project site. The network of sidewalks and crosswalks in the project area has generally g ood connectivity and provide safe routes to transit stops and other points of interest in the downtown area.

The proposed project would provide 50 long-term bicycle parking spaces, consistent with the requirements of the City of San José Municipal Code. The inclusion of bicycle parking and proximity to transit would offer future residents alternative methods of transportation to a nd from the site. As described above, the project site is located near major transit services, including LRT, bus routes, and the Diridon Station.

Based on the discussion above, the project would not conflict with a program plan, ordinance or policy addressing the circulation system, including transit, roadway, bicycle and pedestrian facilities.

b) Same Impact as Approved Project . City Council Poli cy 5 -1 uses vehicle miles traveled (VMT) as the metric to assess transportation impacts from new development under CEQA.

CEQA Guidelines Section 15064.3(b) indicates that “generally, [land use] projects within one- half mile of either an existing major transit stop or a stop along an existing high quality transit corridor should be presumed to cause a less than significant transportation impact.” The St.

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James Light Rail Train (LRT) Station is located approximately 885 feet (0.17-miles) north of the project site on North First Street at St. James Park. The San Antonio LRT station is located approximately 1,300 feet (0.25-miles) south of the project site on South Second Street. The LRT and Caltrain services provide access to the Diridon Transit Center, located approximately one mile west of the project site at Cahill Street. In addition, streets within one block of the project site are served by bus routes.

The project is located within the downtown area, which does not exceed commercial VMT per job or residential VMT per capita as described in the Downtown Strategy FEIR. The project, therefore, will be consistent with CEQA Guidelines Section 15064.3(b).

c) Same Impact as Approved Project. The project includes construction of a single building on a developed site, and would not substantially increase hazards due to a design feature (for example, sharp curves or dangerous intersections) or incompatible uses. The City will coordinate with the project applicant’s design team to address any site circulation/access items.

d) Same Impact as Approved Project. The applicant will work with the Planning, Building and Code Enforcement Department and SJFD to ensure that emergency vehicle and firefighter access are adequately addressed in the final design. The impacts to emergency access would, therefore, result in the same impact as the approved project with respect to emergency access.

Transportation Chapter Conclusion

Increased vehicular traffic associated with the downtown redevelopment, including residential development, was anticipated as part of the Downtown Strategy 2040. The transportation analysis for the Downtown Strategy 2040 FEIR applied the City Council’s new Transportation Policy 5-1 that applies VMT as the metric to assess transportation impacts from new development under CEQA. This policy replaces the City’s Transportation Impact Policy (Council Policy 5-3), which was based on the use of intersection LOS as the primary measure of development impacts. The Downtown Strategy 2040 EIR found that plan buildout would have a less than significant traffic impact based on VMT.

Based on the above analysis, the project would not result in new or more significant impacts to transportation facilities than those identified in the Downtown Strategy 2040 EIR.

The project is located within the approved, single -bore, west option of the BART Extension Project.

The SEIS/SEIR for the BART Extension Project identified potential construction transportation impacts and mitigation related to the conflicting with a transportation plan, ordinance or policy (TRA- CNST-A through TRA-CNST-C) and resulting in adequate emergency access (TRA-CNST-C: Prepare and Implement an Emergency Services Coordination Plan). In addition, an operational impact and mitigation was identified related to conflicting with a transportation plan, ordinance or policy (TRA - A through TRA-C). Some of the impacts to transportation identified in the SEIS/SEIR remained significant and unavoidable even with mitigation.

The proposed project would result in less than significant impacts through implementation of standard permit conditions identified above. No automobile parking is included in the proposed project. As a result, the proposed project would not result in new significant impacts to transportation, compared to what was analyzed in the SEIS/SEIR. The project would have a less than significant on transportation and would not result in new or more severe transportation impacts than identified in the SEIS/SEIR for the BART Extension Project.

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R. TRIBAL CULTURAL RESOURCES
Regulatory Framework

State

Assembly Bill 52

Assembly Bill (A B) 52, effective July of 2015, established a new category of resources for consideration by public agencies when approving discretionary projects under CEQA, called Tribal Cultural Resources (TCRs). AB 52 requires lead agencies to provide notice of projects to tribes that are traditionally and culturally affiliated with the geographic area if they have requested to be notified.

Where a project may have a significant impact on a tribal cultural resource, consultation is required until the parties agree to measures to mitigate or avoid a significant effect on a tribal cultural resource or when it is concluded that mutual agreement cannot be reached. Under AB 52, TCRs are defined as follows:

• Sites, features, places, cultural landscapes, sacred places, and object s with cultural value to a California Native American tribe that are also either:

o Included or determined to be eligible for inclusion in the California Register of Historic Resources,
50 or

o Included in a local register of historical resources as defined in Public Resources Code Section 5020.1(k).

• Resources determined by the lead agency to be TCRs.

AB 52 notification and consultation applies to projects for which a Notice of Intent or Notice of Availability is issued after the effective date of AB 52 in 2015. Notification and consultation are not required for projects covered by a prior EIR or Mitigated Negative Declaration (MND) that either predates AB 52 or that has already complied with AB 52.

The Native American Heritage Commission

The Native American Heritage Commission (NAHC) was created by statute in 1976, and is a nine- member body appointed by the Governor to identify and catalog cultural resources (i.e., places of special religious or social significance to Native Americans and known graves and cemeteries of Native Americans on private lands) in California. The Commission is responsible for preserving and ensuring accessibility of sacred sites and burials, the disposition of Native American human remains and burial items, maintaining an inventory of Native American sacred sites located on public lands, and reviewing current administrative and statutory protections related to these sacred sites.

50 See Public Resources Code section 5024.1. The State Historical Resources Commission oversees the administration of the CRHR and is a nine-member state review board that is appointed by the Governor, with responsibilities for the identification, registration, and preservation of California's cultural heritage. The CRHR “shall include historical resources determined by the commission, according adopted procedures, to be significant and to meet the criteria in subdivision (c) (Public Resources Code, Section 5024.1 (a)(b)).

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Senate Bill 18

The intent of SB 18 is to aid in the protection of traditional tribal cultural places through local land use planning by requiring city governments to consult with California Native American tribes on projects which include adoption or amendment of general plans (defined in Government Code Section 65300 et seq.) and specific plans (defined in Government Code Section 65450 et seq.). SB 18 requires local governments to consult with tribes prior to making certain planning decisions and to provide notice to tribes at certain key points in the planning process.

General Plan

The Envision San José 2040 General Plan includes the following tribal cultural resource policies applicable to the Proposed Project:

Envision San José 2040 Relevant Tribal Cultural Resources Policies Policy ER-10.1 For proposed development sites that have been identified as archaeologically or paleontologically sensitive, require investigation during the planning process in order to determine whether potentially significant archaeological or paleontological information may be affected by the project and then require, if needed, that appropriate mitigation measures be incorporated into the project design.

Policy ER-10.2 Recognizing that Native American human remains may be encountered at unexpected locations, impose a requirement on all development permits and tentative subdivision maps that upon discovery during construction, development activity will cease until professional archaeological examination confirms whether the burial is human. If the remains are determined to be Native American, applicable state laws shall be enforced
Policy ER-10.3 Ensure that City, State, and Federal historic preservation laws, regulations, and codes are enforced, including laws related to archaeological and paleontological resources, to ensure the adequate protection of historic and pre-historic resources.

Environmental Setting

Assembly Bill (AB) 52, effective July of 2015, established a new category of resources for consideration by public agencies when approving discretionary projects under CEQA, called Tribal Cultural Resources (TCRs). AB 52 requires lead agencies to provide notice of projects to tribes that are traditionally and culturally affiliated with the geographic area if they have requested to be notified.

See additional discussion under “Regulatory Framework” below.

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Impacts and Mitigation

Thresholds per CEQA Checklist

18. TRIBAL CULTURAL RESOURCES. Would the project:
a) Cause a substantial adverse change in the
significance of a tribal cultural resource,
defined in Public Resources Code section
21074 as either a site, feature, place, cultural
landscape that is geographically defined in
terms of the size and scope of the landscape,
sacred place, or object with cultural value to
a California Native American tribe, and, and
that is:
i) Listed or eligible for listing in the
California Register of Historical Resources,
or in a local register of historical resources as
defined in Public Resources Code Section
5020.1(k), or
ii) A resource determined by the lead agency,
in its discretion and supported by substantial
evidence, to be significant pursuant to
criteria set forth in subdivision (c) of Public
Resources Code Section 5024.1. In applying
the criteria set forth in subdivision (c) of
Public Resource Code Section 5024.1, the
lead agency shall consider the significance of
the resource to a California Native American
tribe.

X 1, 2, 10

Explanation

As discussed below, the proposed project would not result in a new or greater impact related to tribal cultural resources than was previously disclosed in the Downtown Strategy 2040 FEIR.

a) i, ii Same Impact as Approved Project. Tribal cultural resources consider the value of a resource to tribal cultural tradition, heritage, and identity, in order to establish potential mitigation and to recognize that California Native American tribes have expertise concerning their tribal history and practices. No tribal cultural resources have been listed or determined eligible for listing in the California Register or a local register of historical resources.

AB 52 requires lead agencies to conduct formal consultations with California Native American tribes during the CEQA process to identify tribal cultural resources that may be subject to significant impacts by a project. Where a project may have a significant impact on a tribal cultural resource, the lead agency’s environmental document must discuss the impact and whether feasible alternatives or mitigation measures could avoid or substantially lessen the impact. This consultation requirement applies only if the tribes have sent written requests for notification of projects to the lead agency. In 2017, the City had sent a letter to tribal representatives in the area to welcome participation in the consultation process for all ongoing, proposed, or future projects within the City’s Sphere of Influence or specific areas of the City.

The Ohlone Tribe submitted a request in July of 2018 for notification of projects in Coyote Eterna Tower Mixed-Use Development Chapter 3
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Valley (approximately 14 miles south of the site) and downtown San José requiring a Negative Declaration, a Mitigated Negative Declaration, or an Environmental Impact Report that would involve ground-disturbing activities.

In addition, at the time of preparation of this document, two additional tribes have either sent written requests for notification of projects to the City of San José or provided a verbal request.

On June 17, 2021, Chairwoman Geary of the Tamien Nation verbally requested AB 52 notification and the written notice received June 28, 2021, requesting notification of projects in accordance with Public Resources Code Section 21080.3.1 subd (b), for all proposed projects that require a Negative Declaration, Mitigated Negative Declaration, or Environmental Impact Report.

• On June 30, 2021, Kanyon Sayers -Roods of the Band of Costanoan Ohlone people verbally requested AB 52 notification for all proposed projects that require a Negative Declaration, Mitigated Negative Declaration, or an Environmental Impact Report. Accordingly, the project’s AB 52 notification was sent electronically on July 16, 2021. To date, no response has been provided.

The project Initial Study/Addendum is outside of the parameters of the requests and therefore, no consultations took place. Nonetheless, mitigation included for cultural resources, in some instances, also covers the inadvertent discovery of tribal cultural resources.

Tribal Cultural Resources Chapter Conclusion

The Downtown Strategy 2040 EIR identified potential impacts on tribal cultural resources from sites, features, places, cultural landscapes that are geographically defined in terms of the size and scope of the landscape, sacred places, or objects with cultural value to a California Native American tribe. The Downtown Strategy 2040 EIR identified mitigation for these impacts that requires evaluation of development sites by a qualified cultural resources consultant and adherence to specific recommendations of the consultant based on site -specific review. Other mitigation included standard measures for avoiding impacts to subsurface archaeological resources and/or human remains if discovered during construction activities. The impacts of the proposed project on historic resources and mitigation are identified consistent with the Downtown Strategy 2040 EIR. Based on the above analysis, the project would not result in new or more significant impacts to tribal resources than those identified in the Downtown Strategy 2040 EIR. Additional discussion of archeological resources and mitigation is provided in Section E. Cultural Resources.

The project is located within the approved, single -bore, west option of the BART Extension Project.

The SEIS/SEIR for the BART Extension Project was prepared in 2016, prior to the addition of the Tribal Cultural Resources section of the Appendix G CEQA checklist. As a result, tribal cultural resources were not evaluated in the SEIS/SEIR for the BART Extension Project.

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S. UTILITIES AND SERVICE SYSTEMS

Regulatory Framework

State

Assembly Bill 939

California AB 939 established the California Integrated Waste Management Board (CalRecycle), which required all California counties to prepare Integrated Waste Management Plans. In addition, AB 939 required all municipalities to divert 50 percent of their waste stream by the year 2000.

Assembly Bill 341 (2011)

AB 341 sets forth the requirements of the statewide mandatory commercial recycling program for businesses that generate four or more cubic yards of commercial solid waste per week and multi-family dwellings with five or more units in California. AB 341 sets a statewide goal for 75 percent disposal reduction by the year 2020.

Assembly Bill 1826 (2014)

AB 1826 sets forth the requirements of the statewide mandatory commercial organics recycling program for businesses and multi-family dwellings with five or more units that generate two or more cubic yards of commercial solid waste per week. AB 1826 sets a statewide goal for 50 percent reduction in organic waste disposal by the year 2020.

Senate Bill 1383 (2016)

SB 1383 establishes targets to achieve a 50 percent reduction in the level of the statewide disposal of organic waste from the 2014 level by 2020 and a 75 percent reduction by 2025. The bill grants CalRecycle the regulatory authority required to achieve the organic waste disposal reduction targets and establishes an additional target that at least 20 percent of currently disposed edible food is recovered for human consumption by 2025.

California Green Building Standards Code Compliance for Construction, Waste Reduction, Disposal and Recycling

In January 2017, the State of California adopted the California Green Building Standards Code (CALGreen), establishing mandatory green building standards for all buildings in California. The code covers five categori es: planning and design, energy efficiency, water efficiency and conservation, material conservation and resources efficiency, and indoor environmental quality. These standards include the following mandatory set of measures, as well as more rigorous voluntary guidelines, for new construction projects to achieve specific green building performance levels:

• Reducing indoor water use by 20 percent;
• Reducing wastewater by 20 percent;
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• Recycling and/or salvaging 65 percent of nonhazardous construction and demolition (C&D) debris, or meeting the local construction and demolition waste management ordinance, whichever is more stringent (see San José- specific CALGreen building code requirements in the local regulatory framework section below); and
• Providing readily accessible areas for recycling by occupant.

Local

San José Zero Waste Strategic Plan/Climate Smart San José

Climate Smart San José provides a comprehensive approach to achieving sustainability through new technology and innovation. The Zero Waste Strategic Plan outlines policies to help the City of San José foster a healthier community and achieve its Climate Smart San Jose goals, including 75 percent diversion of waste from the landfill by 2013 and zero wa ste by 2022. Climate Smart San José also includes ambitious goals for economic growth, environmental sustainability, and enhanced quality of life for San José residents and businesses.

Green Vision

The City’s Green Vision provides a comprehensive approach to achieving sustainability through technology and innovation. As discussed above, the Zero Waste Strategic Plan outlines policies to help the City of San José facilitate a healthier community and achieve its Green Vision goals, including 75 percent waste diversion by 2013, which has been achieved, and zero waste by 2022.

Construction and Demolition Diversion Deposit Program

The Construction and Demolition Diversion Deposit Program (CDDD) requires projects to divert at least 50% of total projected project waste to be refunded the deposit. Permit holders pay this fully refundable deposit upon application for the construction permit with the City if the project is a demolition, alteration, renovation, or a certain type of tenant improvement. The minimum project valuation for a deposit is $2,000 for an alteration-renovation residential project and $5,000 for a non- residential project. There is no minimum valuation for a demolition project and no square footage limit for the deposit applicability. The deposit is fully refundable if C&D materials were reused, donated, or recycled at a City-certified processing facility. Reuse and donation require acceptable documentation, such as photos, estimated weight quantities, and receipts from donations centers stating materials and quantities.

Though not a requirement, the permit holder may want to consider conducting an inventory of the existing building(s), determining the material types and quantities to recover, and salvaging materials during deconstruction.

California Green Building Standards Code Compliance for Construction, Waste Reduction, Disposal and Recycling

The City of San José requires 75 percent diversion of nonhazardous construction and demolition debris for projects that quality under CALGreen, which is more stringent than the state requirement of 65 percent (San José Municipal Code Section 9.10.2480).

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Council Policy 8-13 Green Building Policy

Council Policy 8-13 “Green Building Policy” for private sector new construction encourages building owners, architects, developers, and contractors to incorporate sustainable building goals early in the building design process. This policy establishes baseline green building standards for new private construction projects and provides a framework for the implementation of these standards. The Policy is also intended to enhance the public health, safety, and welfare of the City’s residents, workers, and visitors by encouraging design, construction, and maintenance practices that minimize the use and waste of energy, water, and other resources in the City.

General Plan

Policies in the General Plan have been adopted for the purpose of avoiding or mitigating utilities and service system impacts from development projects. Policies applicable to the proposed project are presented below.

Envision San José 2040 Relevant Utilities and Service System Policies Policy MS-1.4 Foster awareness in San José’s business and residential communities of the economic and environmental benefits of green building practices. Encourage design and construction of environmentally responsible commercial and residential buildings that are also operated and maintained to reduce waste, conserve water, and meet other environmental objectives.

Policy MS-3.1 Require water-efficient landscaping, which conforms to the State’s Model Water Efficient Landscape Ordinance, for all new commercial, institutional, industrial, and developer-installed residential development unless for recreation needs or other area functions.

Policy MS-3.2 Promote use of green building technology or techniques that can help to reduce the depletion of the City’s potable water supply as building codes permit.

Policy MS-3.3 Promote the use of drought tolerant plants and landscaping materials for nonresidential and residential uses.

Policy MS-19.3 Expand the use of recycled water to benefit the community and the environment.

Policy MS-19.4 Require the use of recycled water wherever feasible and cost-effective to serve existing and new development.

Action EC-5.16 Implement the Post-Construction Urban Runoff Management requirements of the City’s Municipal NPDES Permit to reduce urban runoff from project sites.

Policy IN-3.3 Meet the water supply, sanitary sewer and storm drainage level of service objectives through an orderly process of ensuring that, before development occurs, there is adequate capacity. Coordinate with water and sewer providers to prioritize service needs for approved affordable housing projects.

Policy IN-3.5 Require development which will have the potential to reduce downstream LOS to lower than “D”, or development which would be served by downstream lines already operating at a LOS lower than “D”, to provide mitigation measures to improve the LOS to “D” or better, either acting independently or jointly with other developments in the same area or in coordination with the City’s Sanitary Sewer Capital Improvement Program.

Policy IN-3.7 Design new projects to minimize potential damage due to stormwaters and flooding to the site and other properties.

Policy IN-3.9 Require developers to prepare drainage plans that define needed drainage improvements for proposed developments per City standards.

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Envision San José 2040 Relevant Utilities and Service System Policies Policy IN-3.10 Incorporate appropriate stormwater treatment measures in development projects to achieve stormwater quality and quantity standards and objectives in compliance with the City’s National Pollutant Discharge Elimination System (NPDES) permit.

Existing Setting

Utilities and services are furnished to the project site by the following providers:

• Wastewater Treatment: treatment and disposal provided by the San José/Santa Clara Water Regional Wastewater Facility (RWF); sanitary sewer lines maintained by the City of San José • Water Service: San Jose Water Company (SJWC)
• Storm Drainage: City of San José
• Solid Waste: Garden City Sanitation (solid waste), California Waste Solutions (recycling), GreenWaste Recovery (yard waste)
• Natural Gas & Electricity: PG&E

Per City regulations, mixed-use developments may commingle the residential solid waste and commercial solid waste generated at the mixed -use development. The commingled waste shall be collected by the city's authorized multi-family dwelling solid waste collector if the total square footage of commercial building space in the mixed-use development is less than fifteen percent of the total building space (SJMC Sec 9.10.1810 combined waste streams). The commingled waste shall be collected by Republic Services if the total square footage of commercial building space in the mixed- use development is fifteen percent or more of the total building space.

Existing Water Supply System

Water service to the project site is provided by San José Water Company (SJWC). The project applicant would be required to acquire a “will serve” letter from SJWC to assure adequate water is available to serve the proposed residential uses.

Groundwater

SJWC draws water from the Santa Clara Valley Subbasin in the north part of Santa Clara County. The basin is 22 miles long and 15 miles wide with an operational storage capacity estimated to be 350,000 acre-feet. Groundwater is a substantial source of water for SJWC. In 2014, groundwater accounted for about 57 percent of SJW’s total potable supply.

Surface Water

SJWC has “pre-1914 surface water rights” to raw water in Los Gatos Creek and local watersheds in the Santa Cruz Mountains. Prior to 1872, appropriative water rights could be acquired by simply taking and beneficially using water. In 1914, the Water Code was adopted, grandfathering in all existing water entitlements to license holders. SJWC filed for a license in 1947, and in 1976 was granted a license allowing it to draw 6,240 acre-feet per year (AFY) from Los Gatos Creek. SJWC has since upgraded the collection and treatment system that draws water from this watershed, which has increased the capacity of this entitlement to approximately 11,200 AFY for an average rain year.

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Recycled Water

South Bay Water Recycling (SBWR) has been serving Silicon Valley communities since 1993. In 1997, SJWC entered into a Wholesaler-Retailer Agreement with the City of San José to provide recycled water to SJWC’s existing and new customers near SBWR recycling water distribution facilities. In accordance with the terms of this agreement, SJWC allowed SBWR to construct recycled water pipelines in its service area; SJWC would only own the recycled water meters while SBWR would own, operate, and maintain the recycled water distribution system. In 2010, the W holesaler- Retailer Agreement was amended to allow SJWC to construct recycled water infrastructure that would be owned, operated, and maintained by SJWC. In 2012, the agreement was again amended to allow SJWC to construct additional recycled water infrastructure.

Wastewater/Sanitary Sewer System

The City's sanitary sewer/wastewater treatment system has two distinct components: 1) a network of sewer mains/pipes that conveys effluent from its source to the treatment plant; and 2) the water pollution control plant that treats the effluent, including a system of mains/pipes that transports a portion of the treated wastewater for non-potable uses (e.g., irrigation of landscaping, agricultural irrigation, dust suppression during construction, etc.).

Sanitary sewer lines in the project area are owned and maintained by the City of San José. Wastewater generated on the project site is discharged to the existing 10-inch vitrified clay pipe (VCP) sanitary sewer line located in North Second Street.

Wastewater treatment service for the project area is provided by the City of San José through the San José-Santa Clara Regional Wastewater Facility (RWF). The RWF is located in Alviso and serves over 1,500,000 people in San José, Santa Clara, Milpitas, Campbell, Cupertino, Los Gatos, Saratoga, and Monte Sereno. The RWF treats approximately 110 million gallons per day (mgd) of sewage during dry weather flow, and has a capacity of 167 mgd.
51 The City of San José generates approximately 69.8
mgd of dry weather average flow. 52 Fresh water flow from the RWF is discharged to the South San Francisco Bay or delivered to the South Bay Water Recycling Project for distribution.

Existing Solid Waste Disposal System

Santa Clara County’s Integrated Waste Management Plan (IWMP) was approved by the California Integrated Waste Management Board (CIWMB) in 1996 and was reviewed in 2004, 2007, 2011, and 2016. Each jurisdiction in the county has a diversion requirement of 50 percent for 2000 and each year thereafter. Each jurisdiction in the County has a landfill diversion requirement of 50 percent per year.

According to the IWMP, the County has adequate disposal capacity beyond 2030. 53 Solid waste
generated wi thin the County is landfilled at Guadalupe Mines, Kirby Canyon, Newby Island, and Zanker Road landfills.

51 City of San José. “San José/Santa Clara Regional Wastewater Facility.” Accessed April 29, 2020. https://www.sanjoseca.gov/your-government/environment/water-utilities/regional-wastewater-facility. 52 City of San José. Envision San José 2040 General Plan FEIR. September 2011. Page 648. 53 Santa Clara County. Five-Year CIWMP/RAIWMP Review Report. June 2016.

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Existing Storm Drainage System

The project site is served by an underground storm drainage line maintained by the City of San José.

Runoff from project area is directed to the existing 12-inch reinforced concrete pipe (RCP) storm drainage line located in North Second Street.

Electricity and Natural Gas

SJCE is the electricity provider for residents and businesses in the City of San José. SJCE sources electricity, and PG&E delivers it to customers using existing PG&E utility lines. SJCE buys its power from a number of suppliers. Sources of renewable and carbon- free power include California wind, solar, and geothermal; Colorado wind; and hydroelectric power from the Pacific Northwest. SJCE customers are automatically enrolled in the GreenSource program, which provides 80 percent GHG emission-free electricity. Customers can enroll in the TotalGreen program through SJCE and receive 100 percent GHG -free electricity from entirely renewable resources. It is assumed that, once operational, the project would utilize SJCE.

PG&E also furnishes natural gas for residential, commercial, industrial, and municipal uses. In 2018, natural gas facilities provided 15 percent of PG&E’s electricity delivered to retail customers; nuclear plants provided 34 percent; hydroelectric operations provided 13 percent ; renewable energy facilities including solar, geothermal, and biomass provided 39 percent, and two percent was unspecified. 54 Total energy usage in California was approximately 7,881 trillion Btu in the year 2017, the most recent year for which this data was available. In 2017, California was ranked second in total energy consumption in the nation, and 48
th in energy consumption per capita. The breakdown by sector was approximately 18 percent (1,416 trillion Btu) for residential uses, 19 percent (1,473 trillion Btu) for commercial uses, 23 percent (1,818 trillion Btu) for industrial uses, and 40 percent (3,175 trillion Btu) for transportation. This energy is mainly supplied by natural gas, petroleum, nuclear electric power, and hydroelectric power.

Impacts and Mitigation

Thresholds per CEQA Checklist

19. UTILITIES AND SERVICE SYSTEMS. Would the project:
a) Require or result in the relocation or
construction of new or expanded water, or
wastewater treatment or storm water
drainage, electric power, natural gas, or
telecommunications facilities, the
construction or relocation of which could
cause significant environmental effects?
X 1, 2

54 PG&E, Delivering low-emission energy. Accessed September 19, 2018. Available at: https://www.pge.com/en_US/about- pge/environment/what-we-are-doing/clean-energy-solutions/clean-energy-solutions.page Eterna Tower Mixed-Use Development Chapter 3
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ENVIRONMENTAL IMPACTS
New
Potentially
Significant
Impact
New
Less Than
Significant
With
Mitigation
Incorporated
New
Less Than
Significant
Impact
Same
Impact as
Approved
Project
Less
Impact
than
Approved
Project
Checklist
Source(s)
b) Have sufficient water supplies available to
serve the project and reasonably foreseeable
future development during normal, dry and
multiple dry years?
X 1, 2
c) Result in a determination by the wastewater
treatment provider which serves or may
serve the project that it has adequate capacity
to serve the project’s projected demand in
addition to the provider’s existing
commitments?
X 1, 2
d) Generate solid waste in excess of State or
local standards, or in excess of the capacity
of local infrastructure, or otherwise impair
the attainment of solid waste reduction
goals?
X 1, 2
e) Comply with federal, state, and local
management and reduction statutes and
regulations related to solid waste?
X 1, 2

Explanation

As discussed below, the proposed project would not result in a new or greater impact on utilities and service systems than was previously disclosed in the Downtown Strategy 2040 FEIR.

a) Same Impact as Approved Project. The project would incrementally increase demands on utility services. Given the small scale of the project (192 residential units and 2,500 square feet of commercial), the increase in utility demand is expected to be minor since it represents a small fraction of the total growth identified in the City’s General Plan (the project does not propose any changes to the land use designations on the site).

Water service to the site would be supplied by SJWC, a private entity that obtains water from a variety of groundwater and surface water sources. The project proposes to construct a water conveyance lateral that would tie into SJWC’s water distribution system. The project has been designed to minimize the use and waste of water in accordance with the State and local regulations (identified in the setting above). Additionally, because the project is consistent with the City’s General Plan, the growth proposed by the project and its associated water use was addressed in the General Plan EIR. The project applicant would be required to acquire a “will serve” letter from SJWC to assure adequate water is available to serve the proposed residential uses. Therefore, the project would not result in the relocation or construction of new or expanded water facilities.

The City of San José owns and maintains the sanitary sewer drain system in the project area.

An existing 12-inch polyvinyl (PVC) chloride sanitary sewer main extends along East Santa Clara Street and would serve the project. The project proposes to construct a new sanitary sewer lateral that would tie into the sanitary sewer main in East Santa Clara Street. The RWF treats approximately 110 mgd of sewage during dry weather flow, and has a capacity of 167 mgd. Development allowed under the General Plan (which includes the project) would not Eterna Tower Mixed-Use Development Chapter 3
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exceed the City’s allocated capacity at the RWF. Therefore, the project would not result in the relocation or construction of new or expanded wastewater facilities.

As described in Section F. Energy, the project would have a less than significant impact related to electricity use that would result primarily for building heating and cooling, lighting, cooking, and water heating. The City of San José passed an ordinance in December 2020 that prohibits the use of natural gas infrastructure in new buildings. This ordinance applies to any new construction (with the exception of hospitals, restaurants, etc.) starting August 1, 2021. In addition, the project would incorporate a number of efficiency measures to minimize the consumption of energy, such as the project would be built to the 2019 California Building Code standards and Title 24 energy efficiency standards (or subsequently adopted standards during the one-year construction term), and CALGreen code. In addition, as described previously the project would be required to submit a LEED, GreenPoint, or Build-It-Green checklist as part of their development permit applications in accordance with Council Policy 6-32, which promotes practices to minimize the use and waste of energy, water, and other resources in the City of San José. Therefore, the project would not result in the relocation or construction of new or expanded energy facilities.

The provision/relocation of telecommunication facilities would be coordinated between the project applicant and telecommunication provider and no significant environmental effects are anticipated as a result of the project as the project is not anticipated to result in the relocation or construction of new or expanded telecommunication facilities.

As described in Section J . Hydrology and Water Quality , the project would not significantly impact storm drainage facilities. The project proposes to tie into the City’s existing storm line within East Santa Clara Street. Storm water runoff from the site would be managed and treated in accordance with City policies, which includes implementation of a stormwater control plan.

Therefore, the project would not result in the relocation or construction of new or expanded storm water facilities.

For the reasons presented above, the project is not expected to require or result in the relocation or construction of new or expanded water, wastewater treatment, storm water drainage, electric power, natural gas, or telecommunications facilities, the construction or relocation of which could cause significant environmental effects.

b) Same Impact as Approved Project. The project would incrementally increase de mands on utility services. Water service to the site would be supplied by SJWC, a private entity that obtains water from a variety of groundwater and surface water sources. The amount of water demand for the project has not been made available. However, the project applicant would be required to acquire a “will serve” letter from SJWC to assure adequate water is available to serve the proposed commercial uses during normal, dry, and multiple dry year conditions.

Additionally, because the project is consistent with the City’s General Plan, the growth proposed by the project and its associated water use was addressed in the General Plan EIR.

c) Same Impact as Approved Project . Wastewater from the City of San José is treated at the RWF. The RWF has the capacity to provide tertiary treatment of up to 167 mgd of wastewater but is limited to a 120 mgd dry weather effluent flow by the State and Regional Water Quality Eterna Tower Mixed-Use Development Chapter 3
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Control Boards. 55 Based on the General Plan EIR, the City’s average dry weather flow is approximately 69.8 million gallons per day and the City’s capacity allocation is approximately 108.6 mgd, leaving the City with approximately 38.8 mgd of excess treatment capacity.

Development allowed under the General Plan (which includes the project) would not e xceed the City’s allocated capacity at the RWF; therefore, development of the project would have a less than significant impact on wastewater treatment capacity.

d) Same Impact as Approved Project. The project would result in an incremental increase in solid waste generation. According to Santa Clara County’s IWMP, Santa Clara County has adequate disposal capacity beyond 2022. In October 2007, the San José City Council adopted a Zero Waste Resolution that set a goal of 75 percent waste diversion by 2013 and zero waste (at least 90% waste diversion) by 2022. In 2019, there were approximately 614,000 tons of material generated in San Jose that was disposed in various landfills throughout the State.

Newby Island Landfill received approximately 290,000 of that tonnage.

The project would generate approximately 140 tons per year of solid waste. 56 The 2040
General Plan EIR concluded that the increase in waste at buildout of the General Plan would not exceed existing landfill capacity. The proposed project is consistent with the development assumptions in the General Plan and represents a less than significant impact.

e) Same Impact as Approved Project. Final project design would be required to comply with all federal, State, and local statutes and regulations related to solid waste disposal.

Utilities and Services Chapter Conclusion

The Downtown Strategy 2040 EIR found less than significant impacts utilities and service system. The project would not result in new or more significant impacts to the utilities and service system than those identified in the Downtown Strategy 2040 EIR.

The project is located within the approved, single -bore, west option of the BART Extension Project.

The SEIS/SEIR for the BART Extension Project did not identify any potentially significant impacts related to utilities and services. As a result, the proposed project would not result in new significant impacts to utilities and services, compared to what was analyzed in the SEIS/SEIR. The project would have a less than significant impact on utilities and services and would not result in new or more severe utility and service impacts than identified in the SEIS/SEIR for the BART Extension Project.

55 City of San José, San José/Santa Clara Regional Wastewater Facility, 2016. 56 Based on a rate of 4 pounds/dwelling/day for “multi-family residential” for 192 residential units and 12.5 pounds/day for 2,500 s.f. of commercial uses (5 lbs/1,000 s.f./day), from CalRecycle’s Estimated Solid Waste Generation Rates, accessed online at www2.calrecycle.ca.gov/WasteCharacterization/General/Rates Eterna Tower Mixed-Use Development Chapter 3
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T. WILDFIRE

Regulatory Framework

State

Public Resources Code Section 4201 – 4204

Sections 4201 through 4204 of the California Public Resources Code direct Cal Fire to map Fire Hazard Severity Zones (FHSZ) within State Responsibility Areas (SRA), based on relevant factors such as fuels, terrain, and weather. Mitigation strategies and building code requirements to reduce wildland fire risks to buildings within SRAs are based on these zone designations.

Government Code Section 51175 – 51189

Sections 51175 through 51189 of the California Government Code directs Cal Fire to recommend FHSZs within Local Responsibility Areas (LRA). Local agencies are required to designate VHFHSZs in their jurisdiction within 120 days of receiving recommendations from Cal Fire, and may include additional areas not identified by Cal Fire as VHFHSZs.

California Fire Code

The 2016 California Fire Code Chapter 49 establishes the requirements for development within wildland-urban interface areas, including regulations for wildfire protection building construction, hazardous vegetation and fuel management, and defensible space maintained around buildings and structures.

Local

General Plan

Policies in the General Plan have been adopted for the purpose of avoiding or mitigating wildfire impacts from development projects. Relevant policies applicable to the project are presented below.

Envision San José 2040 Relevant Wildfire Policies
Policy EC-8.1 Minimize development in very high fire hazard zone areas. Plan and construct permitted development so as to reduce exposure to fire hazards and to facilitate fire suppression efforts in the event of a wildfire.

Policy EC-8.2 Avoid actions which increase fire risk, such as increasing public access roads in very high fire hazard areas, because of the great environmental damage and economic loss associated with a large wildfire.

Policy EC-8.3 For development proposed on parcels located within a very high fire hazard severity zone or wildland-urban interface area, implement requirements for building materials and assemblies to provide a reasonable level of exterior wildfire exposure protection in accordance with City-adopted requirements in the California Building Code.

Policy EC-8.4 Require use of defensible space vegetation management best practices to protect structures at and near the urban/wildland interface.

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Impacts and Mitigation

20. WILDFIRE. If located in or near state responsibility areas or lands classified as very high fire hazard severity zones, would the project:
a) Substantially impair an adopted
emergency response plan or emergency
evacuation plan?
X 1, 2, 3
b) Due to slope, prevailing winds, and other
factors, exacerbate wildfire risks, and
thereby expose project occupants to,
pollutant concentrations from a wildfire or
the uncontrolled spread of a wildfire?
X 1, 2, 3, 15
c) Require the installation or maintenance of
associated infrastructure (such as roads,
fuel breaks, emergency water sources,
power lines or other utilities) that may
exacerbate fire risk or that may result in
temporary or ongoing impacts to the
environment?
X 1, 2, 3, 15
d) Expose people or structures to significant
risks, including downslope or downstream
flooding or landslides, as a result of
runoff, post-fire slope instability, or
drainage changes?
X 1, 2, 3, 15

Existing Setting

The project site, located in an urbanized part of the City, is surrounded by residential and commercial development and is not located within a Very-High Fire Hazard Severity Zone (VHFHSZ) for wildland fires, as designated by the California Department of Forestry and Fire Protection (Cal Fire, Fire Hazard Severity Maps, 2007, 2008).

Explanation

As discussed below, the proposed project would not result in a new or greater impact related to wildfire than was previously disclosed in the Downtown Strategy 2040 FEIR.

a) Same Impact as Approved Project. The project would not substantially impair an adopted emergency response plan or emergency evacuation plan. As stated above in Section J. Hazards and Hazardous Materials , the project would not create any barriers to emergency or other vehicle movement in the area and final design would incorporate all Fire Code requirements.

b) Same Impact as Approved Project. The project would not exacerbate wildfire risks due to slope, prevailing winds, and other factors due to the project’s urbanized location away from natural areas susceptible to wildfire. The project site is not located within an area of moderate, high, or very high Fire Hazard Severity for the Local Responsibility Area nor does it contain Eterna Tower Mixed-Use Development Chapter 3
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any areas of moderate, high, or very high Fire Hazard Severity for the State Responsibility Area.

c) Same Impact as Approved Project . Due to the project’s urbanized location and lack of interface with any natural areas susceptible to wildfire, the project would not require the installation or maintenance of associated fire suppression or related infrastructure.

d) Same Impact as Approved Project . See above discussion. The project would not expose people or structures to significant wildfire risks given its highly urban location away from natural areas susceptible to wildfire.

Wildfire Chapter Conclusion

The project would result in a less than significant impact related to wildfire. The Downtown Strategy 2040 FEIR found that with implementation of General Plan policies, future development would not create a significant impact associated with emergency response or wildland fires. The project would not result in new or more significant impacts related to wildfire than those identified in the Downtown Strategy 2040 EIR.

The project is located within the approved, single -bore, west option of the BART Extension Project.

The SEIS/SEIR for the BART Extension Project was prepared in 2016, prior to the addition of the Wildfire section of the Appendix G CEQA checklist. However, wildfire risk was evaluated in the hazardous materials section of the SEIS/SEIR. The SEIS/SEIR did not identify any potentially significant impacts related to wildfire risk. As a result, the proposed project would not result in new significant impacts to wildfire, compared to what was analyzed in the SEIS/SEIR. The project would have a less than significant impact on wildfire and would not result in new or more severe wildfire impacts than identified in the SEIS/SEIR for the BART Extension Project.

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U. MANDATORY FINDINGS OF SIGNIFICANCE

21. MANDATORY FINDINGS OF SIGNIFICANCE.
a) Does the project have the potential to
substantially degrade the quality of the
environment, substantially reduce the habitat
of a fish or wildlife species, cause a fish or
wildlife population to drop below self-
sustaining levels, threaten to eliminate a
plant or animal community, substantially
reduce the number or restrict the range of a
rare or endangered plant or animal or
eliminate important examples of the major
periods of California history or prehistory?
X 1-15
b) Does the project have impacts that are
individually limited, but cumulatively
considerable? ("Cumulatively considerable"
means that the incremental effects of a
project are considerable when viewed in
connection with the effects of past projects,
the effects of other current projects, and the
effects of probable future projects)?
X 1-15
c) Does the project have environmental effects
which will cause substantial adverse effects
on human beings, either directly or
indirectly?
X 1-15

Explanation

a) Same Impact as Approved Project. Based on the analysis provided in this Initial Study, the proposed project would not have the potential to degrade the quality of the environment, substantially reduce the habitat of a fish or wildlife species, cause a fish or wildlife population to drop below self-sustaining levels, threaten to eliminate a plant or animal community, reduce the number or restrict the range of a rare or endangered plant or animal or eliminate important examples of the major periods of California history or prehistory. Mitigation measures and standard permit conditions are identified for potential impacts of the project on special status species and potential disturbance to historic and archaeologic resources to reduce these effects to a less than significant level, consistent with the findings of the Downtown Strategy 2040 EIR.

b) Same Impact as Approved Project. A list of the cumulative development in the project area used for this analysis is presented in Table 15 (taken in part from the City’s website 57 for
planned or approved projects are located within 1,000 feet of the project site.

57 City of San Jose, Private / Key Economic Development Projects Map, Web: https://gis.sanjoseca.gov/maps/devprojects/ Eterna Tower Mixed-Use Development Chapter 3
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Table 15
Cumulative Projects List
Project Name Location Description Status
Fountain Alley
Mixed Use
35 South Second Street This project is located at 35 South Second Street, approximately 330 feet south of
the project site. The project would
include a 21-story mixed-use building
with 194 residential units and 405,000
square feet of office space and 31,959
square feet of ground-level retail.

Pending
Fountain Alley
Office

26 South First Street This project is located at 26 South First Street and is approximately 340 feet
southwest of the project site. This project
is. This project includes a six-story
building with 91,992-sf of commercial
office and retail space. While the
construction schedule is unknown at this
time, construction could occur
simultaneously or concurrently.

Approved but
not yet
constructed
27 West 27 South First Street This project is located at 27 South First Street, which is about 415 feet southwest
of the project site. This project has been
approved and consists of a 22-story
mixed-use building with 374 residential
units and 35,712-sf of retail space.

Partially
Completed
Miro (SJSC
Towers)
39 North Fifth Street This project is located at 39 North 5th Street, which is located 765 feet east of
the project site.

Partially
Completed
Hotel Clariana 27 South Fourth Street This project is located at 27 South Fourth Street, which is about 510 feet southeast
of the project site. This project is
currently under review and would consist
of a five-story hotel and seven-story
condominium building.

Pending
BDG Mixed-
Use
148 to 150 East Santa
Clara Street, 17 South
Fourth Street, and 130
to 134 East Santa Clara
Street
This project is more than 465 feet
southeast of the project site. This project
would consist of a six-story mixed-use
building with ground-level
retail/restaurant uses and office space on
the upper floors. While the construction
schedule is unknown at this time,
construction could occur simultaneously.

Pending
Icon-Echo 147 East Santa Clara
Street
This project is located about 650 feet east
of the project site, and would include the
construction of two towers: a residential
tower with 415 units and an office tower
with 525,000-sf of office space.

Pending
Carlysle 51 Notre Dame Avenue
Construction of an 18-story mixed use
building with 220 residential units, 4,000
sf of commercial space, and 70,000 sf of
office space.

Approved but
not
Constructed
NSP3 Tower 201 West Julian Street
Construction of an 18-story residential
tower with up to 314 residential units and
retail space.

Approved but
not
Constructed
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Table 15
Cumulative Projects List
Project Name Location Description Status
Starcity 199 Bassett Street
Construction of 803 co-living units with
3,800 square feet of retail space.

Approved but
not
Constructed
6th Street
Project 73 North Sixth Street
Construction of a 10-story mixed-use
building with up to 197 residential units
and approximately 2,366 square feet of
commercial space.

Approved but
not
Constructed
Fourth Street
Housing 100 North Fourth Street
Construction a 23-story mixed-use
building with approximately 10,733
square feet of commercial and up to 316
units of housing.

Approved but
not
Constructed
Museum
Place
58 180 Park Avenue
Construction of a 24-story mixed-use
building with approximately 214,000
square feet of office, 13,402 square feet
of ground floor retail, 60,000 square feet
of museum space, 184 hotel rooms, and
306 residential units.

Approved but
not
Constructed
Tribute Hotel 211 South First Street
Construction of a 24-story, 279 room
hotel integrated into a historic building.

Approved but
not
Constructed
200 Park
Avenue Office 200 Park Avenue
Construction of an approximately
1,055,000 square foot office building with
840,000 square feet of office space, and
229,200 square feet of above-grade
parking.

Approved,
under
construction
CityView Plaza 150 Almaden
Boulevard
Construction of three 19-story buildings
with up to approximately 3.8 million
square feet of office and commercial
space.

Approved but
not
Constructed
Almaden
Corner Hotel
8 North Almaden
Boulevard
Construction of a 19-story hotel with up
to 272 rooms and a restaurant and bar.

Approved but
not
Constructed

The project represents mixed-use infill on a downtown site surrounded by existing urban development. Based on the analysis in this Initial Study/Addendum, the proposed project would result in less than significant impacts to aesthetics, agricultural/forestry resources, biological resources, geology and soils, hydrology and water quality, land use, mineral resources, population and housing, public services, recreation, transportation, utilities, and wildfire with implementation of standard permit conditions . As a result, the project’s contribution to a cumulatively significant impact in any of these resource areas would not be considerable.

Cumulative impacts were addressed in the Downtown Strategy 2040 FEIR, which included development proposed by the project. The Downtown Strategy 2040 FEIR identified significant, unavoidable cumulative impacts from buildout of the Strategy from an increase in criteria air pollutants and global GHG emissions. The City Council adopted statements of overriding considerations for these cumulative impacts.

58 There is an entitlement for construction of Museum Place that could move forward at any time. Modifications to the original project are currently under review.

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The project would result in potentially significant impacts related to air quality, cultural resources, hazards and hazardous materials, and vibration. As discussed below, t hese impacts would be minimized by implementation of mitigation and standard permit conditions identified in this document , and would not significantly contribute to cumulative impacts in t hese resource areas.

Cumulative Air Quality Impacts

Increased community risk can occur by either by introducing a new sensitive receptor, such as a residential use, in proximity to an existing source of TACs, by introducing a new source of TACs with the potential to adversely affect existing sensitive receptors in the project vicinity, or by or by significantly exacerbating existing cumulative TAC impacts. The nearest sensitive receptors to the project site are the adjacent and nearby residences. BAAQMD recommends a 1,000 foot-radius for assessing community risks and hazards from TAC mobile and stationary sources. There are also several sources of existing TACs and localized air pollutants in the vicinity of the project. As discussed in Section C. Air Quality, emissions from construction of the proposed project, when combined with emissions from nearby stationary and mobile sources of TACs, would exceed BAAQMD single -source thresholds for maximum infant cancer risk, which is considered a significant air quality impact of the proposed project.

Mitigation Measure AQ -1 would reduce the emissions generated during construction of the project to below the single-source health risk threshold for infant cancer risk. Because criteria air pollutant emissions would contribute to regional and global emissions of such pollutants, the identified thresholds developed by BAAQMD and used by the City of San José were designed such that a project impact would also be a cumulatively considerable impact. Air quality modeling determined that the proposed project would not exceed criteria air pollutant thresholds during construction (see Table 5). For these reasons, the proposed project would not result in a cumulatively considerable air quality impact.

Cumulative Cultural Resources Impacts

Earthmoving activities associated with the proposed project may result in the loss of unknown subsurface prehistoric and historic resources on-site. The project would implement the required Downtown Strategy 2040 FEIR measures as a condition of approval, in addition to standard permit conditions, as identified in Section E. Cultural Resources . As a result, the proposed project would not have a cumulatively considerable impact on cultural resources in the project area.

Cumulative Hazards and Hazardous Materials Impacts

Demolition and construction activities associated with the proposed project may result in the release of asbestos containing materials or contaminated soil vapors located on-site. The proposed project would implement the required Downtown Strategy 2040 FEIR measures as a condition of approval, in addition to mitigation measure MM HAZ-1 and standard permit conditions, as identified in Section I. Hazards and Hazardous Materials. As a result, the proposed project would not have a cumulatively considerable impact on cultural resources in the project area.

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Cumulative Noise & Vibration Impacts

The proposed project would not result in any significant permanent noise impacts. However, the project would result in increased temporary construction-generated noise. However, these impacts would be sufficiently mitigated to less than significant with implementation of standard permit conditions. In addition, the proposed project has the potential to result in impacts related to vibration at nearby historic structures. These impacts would be reduced to less than significant with incorporation of mitigation measure MM NSE-1 as discussed in Section M. Noise and Vibration. Operationally, the proposed project would not result in a significant increase in noise. Therefore, the project would not contribute to a cumulatively considerable impact related to noise and vibration.

c) Same Impact as Approved Project. Based on the analysis provided in this Initial Study/Addendum, the proposed project would not result in environmental effects that would cause substantial adverse effects on human beings, either directly or indirectl y, with implementation of identified mitigation measures and standard permit conditions.

Mandatory Findings of Significance Chapter Conclusion

The project would have a less than significant impact related to the CEQA mandatory findings of significance with the incorporation of mitigation measures, standard permit conditions, and General Plan policies identified in this document. This is consistent with the findings of the Downtown Strategy 2040 and General Plan EIR s. Overall, the project would not result in new or more significant environmental impacts than those identified in the Downtown Strategy 2040 EIR.

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Chapter 4. References

LEAD AGENCY

City of San José Department of Planning, Building and Code Enforcement Christopher Burton, Director
David Keyon, Principal Planner
Cassandra van der Zweep, Supervising Planner
Maira Blanco, Environmental Project Manager

REPORT PREPARATION

Denise Duffy & Associates, Inc.

Environmental Consultant
Leianne Humble, Senior Planner
Robyn Simpson, Associate Planner
Troy Lawson, Assistant Planner

PERSONS CONTACTED

Kimberly Butt, TreanorHL, Architectural Historian & Designer Casey Divine, Illingworth & Rodkin, Staff Consultant
Aysem Kilinc, TreanorHL, Architectural Historian & Preservation Planner Charles Mikulik, CMAC, Principal Archaeologist
James Reyff, Illingworth & Rodkin, Senior Project Scientist/Principal Michael Thill, Illingworth & Rodkin, Senior Consultant/Principal

BIBLIOGRAPHY

AEI Consultants, Phase I Environmental Site Assessment, 17-31 East Santa Clara Street, San Jose, California 95113, August 2021.

Association of Bay Area Governments, Plan Bay Area 2040 Draft Environmental Impact Report , Table 2.1-6, April 2017.

Association of Bay Area Governments and Metropolitan Transportation Commission, Project Mapper.

Available at: http://projectmapper.planbayarea.org/

Bay Area Air Quality Management District, BAAQMD CEQA Guidelines, revised May 2017.

Bay Area Air Quality Management District, Bay Area 2017 Clean Air Plan: Spare the Air, Cool the Climate, April 2017.

Bay Area Air Quality Management District, Appendix B: Best Practices to Reduce Exposure to Local Air Pollution, Planning Healthy Places – A Guidebook for Addressing Local Sources of Air Pollutants in Community Planning, 2016. Available at:
http://www.baaqmd.gov/~/media/files/planning-
and-research/planning-healthy-
places/php_may20_2016-pdf.pdf?la=en
Eterna Tower Mixed-Use Development Chapter 4
EIR Addendum References
214

Bay Area Air Quality Management District, Bay Area Emissions Inventory Summary Report:

Greenhouse Gases Base Year 2011, January 2015. Available at:
https://www.baaqmd.gov/~/media/files/planning- and-research/emission- inventory/by2011_ghgsummary.pdf

Bay Area Air Quality Management District, Recommended Methods for Screening and Modeling Local Risks and Hazards, Version 3.0, 2012. Available at:
https://www.baaqmd.gov/~/media/files/planning-
and-research/ceqa/risk-modeling-
approachmay-2012.pdf?la=en

Bay Area Air Quality Management District, San Francisco Dept. of Public Health, and San Francisco Planning Dept., The San Francisco Community Risk Reduction Plan: Technical Support Document, December 2012.

Bay Area Stormwater Management Agencies Association, Blueprint for a Clean Bay.

California Air Resources Board, Current California GHG Emission Inventory Data , Available at:
https://ww2.arb.ca.gov/ghg-inventory-data.

California Air Resources Board, 2019 Edition, California Greenhouse Gas Emission Inventory 2000- 2017, Available at: https://ww2.arb.ca.gov/ghg-inventory-data.

California Department of Conservation, Santa Clara County Important Farmlands Map, accessed online.

California Department of Finance, -5 Population and Housing Estimates for Cities, Counties, and the State— January 1, 2011-2021.” January 2021. Accessed July 2021. Available at:
http://www.dof.ca.gov/Forecasting/Demographics/Estimates/E-5/

CalFire, Fire Hazard Severity Maps, 2007, 2008.

California Department of Housing and Community Development, Regional Housing Needs Allocation and Housing Elements . Available at: https://www.hcd.ca.gov/community- development/rhna/index.shtml

California Department of Tax and Fee Administration, Net Taxable Gasoline Gallons, accessed online.

Available at: https://www.cdtfa.ca.gov/dataportal/dataset.htm?url=VehicleTaxableFuelDist

California Department of Transportation (CalTrans), California State Scenic Highways Map, accessed online. Available at: https://dot.ca.gov/programs/design/lap-landscape- architecture-and- community-livability/lap-liv-i-scenic-highways

California Department of Water Resources, Dam Breach Inundation Map Web Publisher. Available at: https://fmds.water.ca.gov/webgis/?appid=dam_prototype_v2

Eterna Tower Mixed-Use Development Chapter 4
EIR Addendum References
215
California Energy Commission (CEC), Building Energy Efficiency Standards for Residential and Nonresidential Buildings, December 2018. Accessed July 29, 2021. Available at:
https://www.energy.ca.gov/sites/default/files/2021-06/CEC-400-2018-020-CMF_0.pdf

California Energy Commission (CEC), Natural Gas Consumption by County. Accessed July 29, 2021.

Available at: http://ecdms.energy.ca.gov/gasbycounty.aspx

California Gas and Electric Utilities, California Gas Report , 2019. Available at:
https://www.socalgas.com/regulatory/documents/cgr/2019_CGR_Supplement_7-1-19.pdf

California Geological Service, EQ Zapp: California Earthquake Hazards Zone Application, 2019.

California Geological Service, Earthquake Zones of Required Investigation San Jose West Quadrangle, 2002.

Charles Mikulik Archaeological Consulting, LLC, Results of a Historical/Archaeological Review and Assessment for the Proposed Eterna Tower Development Project at 17 & 29 East Santa Clara Street, San Jose, Santa Clara County, California, May 2021.

David J. Powers & Associates, Inc., Integrated Final Environmental Impact Report , Amendment to Norman Y. Mineta San Jose International Airport Master Plan, April 2020.

Disclosure Source NHD, California Commercial Disclosure Report, 17 E. Santa Clara St, February 2020.

Dowding, C.H., Construction Vibrations, Prentice Hall, Upper Saddle River, 1996.

Federal Emergency Management Agency, FEMA Flood Map, Panel #0234H, Map #06085C023H.

Federal Transit Administration, Transit Noise and Vibration Impact Assessment Manual , September 2018.

IFC International, Final Santa Clara Valley Habitat Plan, August 2012.

Illingworth & Rodkin, Eterna Tower Air Quality Assessment, San José, California, January 2022.

Illingworth & Rodkin, Eterna Tower Environmental Noise and Vibration Assessment, July 2021.

Illingworth & Rodkin, Fountain Alley Project Draft Noise Assessment, October 31, 2005.

Pacific Gas & Electric (PG&E), Delivering Low-Emission Energy. Accessed July 29, 2021. Available at: https://www.pge.com/en_US/about-pge/environment/what-we- are-doing/clean-energy-
solutions/clean-energy-solutions.page

San Francisco Regional Water Quality Control Board, Environmental Screening Levels , 2016.

Available at:
https://www.waterboards.ca.gov/sanfranciscobay/water_issues/programs/esl.html .

Eterna Tower Mixed-Use Development Chapter 4
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216
San José, City of, San José/Santa Clara Regional Wastewater Facility. Available at:
https://www.sanjoseca.gov/your-government/environment/water-utilities/regional- wastewater-facility

San José, City of, San José 2040 Envision San José General Plan, adopted November 2012 and updated through 2018.

San José, City of, Downtown San José Strategy Plan 2040 Integrated Final Environmental Impact Report, December 2018.

San José, City of, Council Policy 6-34: Riparian Corridor Protection and Bird-Safe Design, August 2016.

San José, City of, Greenhouse Gas Reduction Strategy for the City of San José , 2011. Available at:
https://www.sanjoseca.gov/your-government/department-directory/planning-building-code- enforcement/planning-division/environmental-planning/greenhouse-gas-reduction-strategy

San José, City of, Private Sector Green Building Policy: Policy Number 6-32, October 7, 2008.

San José, City of, Private/Key Economic Development Projects Map. Available at:
https://gis.sanjoseca.gov/maps/devprojects/.

San José, City of, Transportation and Environmental Committee, Building Reach Code for New Construction Memorandum, August 2019.

Santa Clara County, Five-Year CIWMP/RAIWMP Review Report, June 2016.

Santa Clara County, Santa Clara County Geologic Hazard Zones, 2012.

Santa Clara County, Final Santa Clara Valley Habitat Plan, August 2012. Available at: https://scv- habitatagency.org/178/Santa-Clara-Valley-Habitat-Plan

Santa Clara County Airport Land Use Commission, Comprehensive Land Use Plan Santa Clara County, Norman Y. Mineta San Jose International Airport , as amended November 2016.

Available at: https://www.sccgov.org/sites/dpd/Commissions/ALUC/Pages/ALUC.aspx

Santa Clara Valley Water District, 2016 Groundwater Management Plan, 2016.

Siskind, D.E., M.S. Stagg, J.W. Kopp, and C.H. Dowding, Structure Response and Damage Produced by Ground Vibration form Surface Mine Blasting, RI 8507, Bureau of Mines Report of Investigations, U.S. Department of the Interior Bureau of Mines, Washington, D.C., 1980.

State of California, Department of Finance, E-5 Population and Housing Estimates for Cities, Counties and State – January 1, 2011-2021, January 2021. Available at:
https://www.dof.ca.gov/Forecasting/Demographics/Estimates/E-5/

TreanorHL, 17-29 E. Santa Clara Street San Jose, California, Historic Resource Assessment & Design Guidelines and Standards Compliance Review Compliance Review, March 2022.

Eterna Tower Mixed-Use Development Chapter 4
EIR Addendum References
217
TreanorHL, 17-29 E. Santa Clara Street San Jose, California, Design Guidelines and Standards Compliance Review Compliance Review, March 2022.

United States Environmental Protection Agency, Highlights of the Automotive Trends Report , Available at: https://www.epa.gov/automotive-trends/highlights-automotive-t rends- report#:~:text=All%20vehicle%20types%20are%20at,are%20all%20at%20record%20highs

United States Environmental Protection Agency, Inventory of U.S. Greenhouse Gas Emissions and Sinks, Available at: https://www.epa.gov/ghgemissions/inventory-us-gre enhouse-gas- emissions-and-sinks

United States Department of Energy, Energy Independence and Security Act of 2007, Available at:
https://afdc.energy.gov/laws/eisa

Valley Transportation Authority and U.S. Department of Transportation, VTA’s BART Silicon Vall ey Phase II Extension Project Final Supplemental Environmental Impact Statement/Subsequent Environmental Impact Report and Section 4(f) Evaluation

CHECKLIST SOURCES

1. CEQA Guidelines and professional expertise of consultant

2. Project plan and site review

3. 2040 Envision San José General Plan

4. 2014 Santa Clara County Important Farmlands Map

5. BAAQMD 2017 CAP

6. BAAQMD CEQA Guidelines, 2017

7. Air Quality Assessment, 2021

8. Santa Clara Valley Habitat Plan

9. Santa Clara Valley Habitat Agency Geobrowser

10. Archaeologic Review, 2021

11. Historic Evaluations, 2021

12. Phase I Assessment, 2021

13. FEMA FIRM Maps

14. Noise & Vibration Assessment, 2021

15. Cal Fire, Fire Hazard Severity Maps, 2007 & 2008
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Page | 1 File No.: H20-026

MITIGATION MONITORING AND REPORTING PROGRAM
Addendum to the Downtown Strategy 2040
Final Environmental Impact Report
Eterna Tower
Mixed-Use Development
File No. H20-026
August 2022

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PREFACE
Section 21081.6 of the California Environmental Quality Act (CEQA) requires a Lead Agency to adopt a Mitigation Monitoring and Reporting Program whenever it approves a project for which measures have been required to mitigate or avoid significant effects on the environment. The purpose of the monitoring and reporting program is to ensure compliance with the mitigation measures during project implementation.

The Initial Study/Addendum to the Downtown Strategy 2040 Final Environmental Impact Report (EIR Addendum) prepared for the Eterna Tower Mixed-Use Development Project concluded that the implementation of the project could result in significant effects on the environment and mitigation measures were incorporated into the proposed project or are required as a condition of project approval. This Mitigation Monitoring and Reporting Program addresses those measures in terms of how and when they will be implemented.

This document does not discuss those subjects for which the EIR Addendum concluded that the impacts from implementation of the project would be less than significant.

I, , the applicant, on the behalf of , hereby agree to implement the mitigation measures described below which have been developed in conjunction with the preparation of an IS/Addendum for my proposed project. I understand that these mitigation measures or substantially similar measures will be adopted as conditions of approval with my development permit request to avoid or significantly reduce potential environmental impacts to a less than significant level.

Project Applicant’s Signature _____________________________________________ Date___________________________________________________________

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MITIGATIONS MONITORING AND REPORTING PROGRAM
Documentation of Compliance
[Project Applicant/Proponent Responsibility]
Documentation of Compliance
[Lead Agency Responsibility]
Method of Compliance
Or Mitigation Action

Timing of
Compliance

Oversight
Responsibility
Actions/Reports

Monitoring
Timing or
Schedule
Air Quality
Impact AQ-1: Project construction would result in an infant cancer risk of 17.9 in one million at the maximally exposed individual (MEI), which exceeds the BAAQMD’s cancer risk significance threshold of 10 in one million.

MM AQ-1: Prior to the issuance of any grading or
demolition permits, the project shall develop a
Construction Operations Plan to reduce DPM and
particulate matter emissions such that increased cancer risk and annual PM2.5 concentrations from construction
would be reduced below the significance level of 10 in
one million as follows:
• All construction equipment larger than 25
horsepower used at the site for more than two
continuous days or 20 hours total shall meet
U.S. EPA Tier 4 emission standards for
particulate matter (PM
10 and PM2.5), if
feasible; or
o If use of Tier 4 equipment is not
available, alternatively use equipment that
meets U.S. EPA emission standards for
Tier 3 engines and include particulate
matter emissions control equivalent to
CARB Level 3 verifiable diesel emission
control devices that altogether achieve a
minimum of 50 percent reduction in
particulate matter exhaust in comparison
to uncontrolled equipment; or
o Encourage the use of alternatively fueled
or electric equipment.

Prepare a construction
operations plan with
equipment verified by an air
quality specialist that
demonstrates off-road
equipment used on-site to
construct the project would
achieve a fleet-wide average
of a 50 percent reduction or
more in diesel particulate
matter exhaust emissions.

Submit the construction
operations plan to the
Director of Planning,
Building, and Code
Enforcement or the
Director’s designee.

Prior to the issuance
of any grading or
demolition permits
(whichever occurs
first).

Director of Planning,
Building, and Code
Enforcement or the
Director’s designee.

Review and
approve the
construction
operations plan.

Prior to issuance
of any
demolition or
grading permits
(whichever
occurs first).

Planning, Building and Code Enforcement

CHRISTOPHER BURTON, DIRECTOR

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Responsibility
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Timing or
Schedule
• As an alternative measure, prior to the
issuance of any demolition, grading, and/or
building permits (whichever occurs first), The
project applicant shall submit the construction
operations plan accompanied by a letter
signed by a qualified air quality specialist that
confirms that the plan would reduce the on-
and near-site construction diesel particulate
matter emissions by a minimum of 50 percent
or greater to the Director of Planning,
Building, and Code Enforcement or Director’s
designee. The plan shall include, but not be
limited to the following:

o List of activities and estimated timing.
o Equipment that would be used for each
activity.
o Manufacturer’s specifications for each
equipment that provides the emissions
level; or the manufacturer’s specifications
for devices that would be added to each
piece of equipment to ensure the
emissions level meet the thresholds in the
mitigation measure.
o How the construction contractor will
ensure that the measures listed are
monitored.
o How the construction contractor will
remedy any exceedance of the thresholds.

Planning, Building and Code Enforcement

CHRISTOPHER BURTON, DIRECTOR

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Compliance

Oversight
Responsibility
Actions/Reports

Monitoring
Timing or
Schedule
o How often and the method the
construction contractor will use to report
compliance with the mitigation measure.

Biological Resources
Impact BIO-1: Construction activities associated with the project could result in the loss of fertile eggs of nesting raptors or other migratory birds, or nest abandonment in adjacent street trees.

MM BIO-1: Tree removal and construction activities
shall be scheduled to avoid the nesting season. The
nesting season for most birds, including most raptors in the San Francisco Bay area, extends from February 1st
through August 31st, inclusive.

If tree removals and construction cannot be scheduled
outside of nesting season, a qualified ornithologist shall complete pre-construction surveys to identify active
raptor nests that may be disturbed during project
implementation. This survey shall be completed no
more than 14 days prior to the initiation of construction activities during the early part of the breeding season (February 1
st through April 30th, inclusive) and no
more than 30 days prior to the initiation of these
activities during the late part of the breeding season
(May 1st through August 31st, inclusive), unless a
shorter pre-construction survey is determined to be
appropriate based on the presence of a species with a
shorter nesting period, such as Yellow Warblers.

During this survey, the ornithologist shall inspect all trees and other possible nesting habitats immediately
adjacent to the construction areas for nests. If an active Avoid starting construction
activities during nesting
seasons. If construction
activities cannot be
scheduled to start outside of
nesting season, conduct a
pre-construction nesting bird
survey by a qualified
ornithologist and, in
consultation with the
California Department of
Fish and Wildlife, designate
a construction-free buffer
zone around any discovered
nests.

Submit a report indicating
the results of the survey and
any designated buffer zones
to the Director of Planning,
Building and Code
Enforcement or Director’s
designee.

Prior to issuance of
any grading or
building permits
(whichever occurs
first).

Director of Planning,
Building and Code
Enforcement or
Director’s designee.

California Department
of Fish and Wildlife.

Confirm that
demolition and
construction
activities are
scheduled to start
outside of the
nesting season; or

Review report
indicating the
results of the
survey and any
designated buffer
zones.

Prior to issuance
of any grading
or building
permits
(whichever
occurs first).

Planning, Building and Code Enforcement

CHRISTOPHER BURTON, DIRECTOR

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Compliance

Oversight
Responsibility
Actions/Reports

Monitoring
Timing or
Schedule
nest is found in an area that will be disturbed by
construction, the ornithologist, will designate a
construction-free buffer zone (typically 250 feet) to be established around the nest, in consultation with
California Department of Fish and Wildlife. The buffer
would ensure that raptor or migratory bird nests shall
not be disturbed during project construction.

The applicant shall submit a report indicating the
results of the survey and any designated buffer zones to the satisfaction of the Director of Planning, prior to the issuance of any grading or building permit.

Cultural Resources
Impact CR-1: Demolition and construction activities for the project could physically damage adjacent historic resources due to potential noise vibration thresholds of 1.233 PPV which is above the City’s threshold of 0.08 PPV for historic buildings.

MM CR-1a: Prior to the issuance of any grading,
building, or demolition permits, the project applicant
shall survey the adjacent historic resources to
determine the existing condition. The survey shall be
conducted by a historical architect meeting the
Secretary of the Interior’s Professional Qualifications Standards for Historic Architecture and a structural
engineer with a minimum of five years of demonstrated
experience with historic buildings. The purpose of the
study is to establish the baseline condition of the
historic buildings prior to construction, including the location and extent of any visible cracks or spalls. The documentation shall take the form of written
descriptions and photographs and shall include those
Retain qualified historical
architect to perform a survey
of adjacent historic
resources. Provide written
descriptions and
visualizations and/or
photographs of the physical
characteristics of the
resources.

Prior to issuance of
any grading,
building or
demolition permits.

City of San José’s
Historic Preservation
Officer and Director of
Planning, Building and
Code Enforcement or
Director’s designee.

Review and
approve
documentation.

Prior to issuance
of any grading,
building or
demolition
permits.

Planning, Building and Code Enforcement

CHRISTOPHER BURTON, DIRECTOR

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Responsibility
Actions/Reports

Monitoring
Timing or
Schedule
physical characteristics of the resources that conveys
their historic significance and that justifies their
inclusion on the national, state, or local inventories.

The documentation shall be reviewed and approved by
the City of San José’s Historic Preservation Officer
(HPO) and Director of Planning, Building and Code
Enforcement or Director’s designee.

MM CR-1b: A qualified geologist, or other
professional with expertise in ground vibration and its effect on existing structures, shall prepare a study of the potential of vibrations caused by excavation and
construction activities associated with the proposed
project. Based on the results of the study, specifications regarding the restrictions shall be incorporated into all construction plans and specifications and implemented
during all construction activities. The specifications
shall also be included on project construction contracts with the applicant. Initial pile-driving shall be
monitored and if vibrations are above threshold levels, modifications shall be made to reduce vibrations to
below established levels. For sensitive historic
structures, a vibration limit of 0.08 in/sec PPV (peak
particle velocity) will be used to minimize the potential for cosmetic damage to a building. A copy of the study, contract specifications, and monitoring reports shall be provided to the City of San José’s HPO and Director of
Planning, Building and Code Enforcement or
Director’s designee.

Retain qualified geologist, or
other professional with
expertise in ground vibration
and its effect on existing
structures, to conduct a study
of the potential of vibrations
caused by excavation and
construction activities and
provide specifications
regarding the restriction and
monitoring of construction
activities.

Prior to issuance of
any grading,
building or
demolition permits.

City of San José’s
Historic Preservation
Officer and Director of
Planning Building and
Code Enforcement or
Director’s designee.

Review and
approve
construction
vibration study.

Prior to issuance
of any grading,
building or
demolition
permits.

Planning, Building and Code Enforcement

CHRISTOPHER BURTON, DIRECTOR

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Responsibility
Actions/Reports

Monitoring
Timing or
Schedule
MM CR-1c: Prior to issuance of any demolition,
grading or building permits, and in combination with
measures CR-1a, and CR-1b, the project applicant shall
prepare a Historical Resources Protection Plan (HRPP)
to protect offsite historic building fabric of the adjacent historic resources from direct or indirect impacts
during construction activities (i.e., due to damage from operation of construction equipment, staging, and
material storage. The project applicant shall include
appropriate contract language to ensure the contractor
follows this plan while working near the historic
resources. The plan shall be prepared by a qualified
historical architect and is subject to review by the
City’s HPO. At a minimum, the plan shall include:
• Guidelines for operation of construction
equipment adjacent to the historic resources,
• Means and methods to reduce vibrations from
excavation and construction,
• Requirements for monitoring and
documenting compliance with the plan, and,
• Education/training of construction workers
about the significance of the adjacent historic
resources.

Prepare a HRPP plan
establishing procedures to
protect the surrounding
historic building fabric of the
adjacent historic resources
from direct or indirect
impacts during construction
activities (i.e., due to
damage from operation of
construction equipment,
staging, and material
storage).

The project applicant shall
include appropriate contract
language to ensure the
contractor follows this plan
while working near the
historic resources.

Prior to issuance of
any demolition,
grading, or building
permits, or any
ground-disturbing
work (whichever
comes first).

Prior to demolition,
grading or any
ground-disturbing
work near historic
resources.

Director of Planning
Building and Code
Enforcement or
Director’s designee.

Supervising
environmental
planner.

Review and
approve HRRP and
recommendations.

Confirm contract
language, monitor
contractor.

Prior to issuance
of demolition
permit, grading
permit, or any
ground-
disturbing work
(whichever is
earlier)

Following
issuance of
permits and
during
demolition,
grading or any
ground-
disturbing work
near historic
resources.

MM CR-1d: A team of at least one qualified historical
architect and one qualified structural engineer shall
make periodic site visits to monitor the condition of the identified historic resources. Any changes to existing
conditions shall be reported, including, but not limited to, expansion of existing cracks, new spalls, or other
Retain qualified team of at
least one qualified historical
architect and one qualified
structural engineer to make
periodic site visits to monitor
the condition of the
During and after
construction.

City of San José’s
Historic Preservation
Officer, Director of
Planning Building and
Code Enforcement or
Director’s designee
Detailed
monitoring reports.

During and after
construction

Planning, Building and Code Enforcement

CHRISTOPHER BURTON, DIRECTOR

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Oversight
Responsibility
Actions/Reports

Monitoring
Timing or
Schedule
exterior deterioration in detailed reports to the Director of Planning Building and Code Enforcement or
Director’s designee, noting any concerns as well as
recommended corrective actions. Monitoring shall
include the use of any instruments deemed necessary
by the historic architect or structural engineer.

For historic structures, the structural engineer shall
consult with the historical architect, especially if any problems with character defining features of the
historic resource are discovered.

If, in the opinion of the historical architect, substantial adverse impacts related to construction activities are
found during construction, the historical architect shall inform the project applicant and the project applicant
shall respond accordingly to the historical architect’s recommendations for corrective measures, including
halting construction in situations where construction
activities would exceed the 0.08 PPV threshold for
historic structures established by the City and
imminently endanger historic resources.

In the event of damage to historic resources during
construction the project applicant shall ensure that
repair work complies with the Secretary of the
Interior’s Standards for the Treatment of Historic
Properties and shall appropriately restore the structure.

The team shall prepare a report documenting the site
visits and the corrective actions taken and provide to
identified historic resources
and provide detailed reports,
including final monitoring
results.

Planning, Building and Code Enforcement

CHRISTOPHER BURTON, DIRECTOR

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Oversight
Responsibility
Actions/Reports

Monitoring
Timing or
Schedule
the Director of Planning, Building and Code
Enforcement or the Director’s designee within 14 days
of completion of monitoring or completion of
corrective actions.

Impact CR-2: Historic-era buried and pre-contact archaeological deposits may be encountered during excavation activities at the project site.

MM CR-2a: Appropriate Prior Review. Cultural
Sensitivity Training. Prior to the issuance of any
demolition, grading, or building permits (whichever
occurs first), the project applicant shall contract with a qualified archaeologist and a qualified Native
American representative registered with the Native
American Heritage Commission (NAHC) for the City
of San José and that is traditionally affiliated with the geographic area prior to the start of any-ground
disturbing activities for at least one cultural sensitivity training for construction personnel, which includes
review of the cultural resource management protocols
and coordinating the on-site monitoring effort.

Project applicant shall
contract with a qualified
archaeologist and a qualified
Native American
representative to conduct at
least one cultural sensitivity
training.

Prior to the issuance
of any grading,
building, or
demolition permits.

Director of Planning,
Building, and Code
Enforcement or the
Director’s designee.

Review and
approve evidence
of cultural
sensitivity training.

Prior to the
issuance of any
grading,
building, or
demolition
permits.

MM CR-2b: On-site Monitoring. In areas where
ground disturbing activities are expected to occur,
archaeological monitoring shall be conducted by a
qualified archaeologist in in consultation with a Native American representative registered with the Native
American Heritage Commission and that is
traditionally and culturally affiliated with the
geographic area as described in Public Resources Code
Section 21080.3. Monitoring is intended to ensure that
appropriate cultural protective measures are effective
prior to initiation of construction activities and to
Coordinate archaeological
monitoring by a qualified
archaeologist in in
consultation with a Native
American representative.

Prepare a monitoring report
documenting results of on-
site monitoring activity.

During ground-
disturbing activities.

Within 14 days of
completion of
monitoring
activities.

Director of Planning,
Building, and Code
Enforcement or the
Director’s designee.

Review and
approve monitoring
report.

Following
completion of
monitoring
report.

Planning, Building and Code Enforcement

CHRISTOPHER BURTON, DIRECTOR

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Responsibility
Actions/Reports

Monitoring
Timing or
Schedule
document and protect cultural resources from
inadvertent damage. During ground-disturbing
activities that may impact cultural resources, at least one archaeological monitor and one Native American
monitor shall be on-site. Archaeological monitors have
the authority to halt construction with the finding of an archaeological discovery and to authorize construction
to resume. Construction that requires monitoring
includes but is not limited to demolition activities that could disturb native soil, any earthmoving, (e.g.,
grading or excavation for foundations, footings, and
trenching for underground utilities). Monitoring shall
continue until the monitor has determined that
excavation has reached the maximum depth at which
archaeological remains could be expected to occur. To
facilitate project planning the following must be
furnished by the applicant: 1) plans, blueprints,
conceptual drawings, etc., detailing proposed impacts
to the project site (grading or excavation prints will
normally be sufficient); and 2) the proposed
construction schedule or activity to be monitored, with types of excavation and/or earth-moving identified.

The results of the monitoring shall be submitted to the Director of Planning, Building and Code Enforcement
or the Director’s designee within 14 days of
completion of monitoring activities.

MM CR-2c: Encountering Prehistoric or Historic
Resources. If prehistoric or historic resources are
encountered during excavation and/or grading of the
Cease work within a 50-foot
radius in the event of the
If prehistoric or
historic resources
are encountered
Director of PBCE or
the Director’s
designee and the
Review and
approve report of
findings.

Ongoing, in the
event resources
are discovered.

Planning, Building and Code Enforcement

CHRISTOPHER BURTON, DIRECTOR

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Responsibility
Actions/Reports

Monitoring
Timing or
Schedule
site, all activity within a 50-foot radius of the find shall be stopped, and the Director of Planning, Building and
Code Enforcement (PBCE) or the Director’s designee
and the City’s Historic Preservation Officer shall be
notified. The on-site archaeologist and Native
American representative shall 1) evaluate the find(s) to determine if they meet the definition of a historical or archaeological resource; and (2) make appropriate
recommendations regarding the disposition of such
finds prior to issuance of building permits.

Recommendations could include reinterment of
artifacts and materials, recordation, and analysis of any significant cultural materials. A report of findings
documenting any data recovery shall be submitted to
the Director of PBCE or the Director’s designee and
the City’s Historic Preservation Officer and the
Northwest Information Center (if applicable). Project
personnel shall not collect or move away any cultural
materials.
discovery of prehistoric or
historic resources.

The on-site archaeologist
and Native American
representative shall 1)
evaluate the find(s) to
determine if they meet the
definition of a historical or
archaeological resource; and
(2) make appropriate
recommendations regarding
the disposition of such finds
prior to issuance of building
permits.

The on-site archaeologist
shall prepare a report of
findings documenting any
data recovery.
during excavation
or grading.

Following stoppage
of all work within
50 feet of the find.

Following
assessment of the
find.

City’s Historic
Preservation Officer
and the Northwest
Information Center (if
applicable).

Hazards and Hazardous Materials
Impact HAZ-1: Development of the proposed project could potentially expose construction workers and the public to soil, soil vapor and groundwater contaminants from HVOCs during the excavation/construction phase of the project, and future users to soil and soil vapor contamination from HVOCs after construction.

MM HAZ-1: The project applicant shall retain a
qualified consultant to conduct a Phase II analysis
consisting of focused sampling and analysis for
contamination of soil, soil vapor, and/or groundwater
Retain qualified
environmental professional
to evaluate environmental
issues in Phase I report and
Prior to issuance of
any grading,
building, or
demolition permits.

Santa Clara County
Department of
Environmental Health
(or equivalent
Identify scope of
required
remediation and
review and approve
Prior to issuance
of any grading,
building, or

Planning, Building and Code Enforcement

CHRISTOPHER BURTON, DIRECTOR

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Oversight
Responsibility
Actions/Reports

Monitoring
Timing or
Schedule
on-site prior to issuance of any grading, building, or
demolition permits. Sampling on the site shall be under the regulatory oversight from the Santa Clara County
Department of Environmental Health’s (SCCDEHs)
Voluntary Cleanup Program, or an equivalent program
by another oversight agency, to address soil and
groundwater contamination discovered on the property.

Removal and off-site disposal of the soil at appropriate landfills during construction of the basement level will likely constitute the mitigation required; however, the oversight agency will approve the proposed mitigation,
or determine if additional groundwater sampling and
mitigation is necessary. Based on the results of the
contamination levels at the site, the project applicant shall prepare, under the guidance of the oversight
agency, a Site and Groundwater Management Plan
(SGMP) or equivalent report. The SGMP or equivalent
report must establish and implement remedial measures
and/or soil management practices to ensure
construction worker safety and the health of future
workers and visitors.

The results of Phase II investigation and evidence of
regulatory oversight, if required, and the appropriate
plan such as an SGMP or equivalent document shall be
provided to the Director of Planning, Building and
Code Enforcement or the Director’s designee.
perform appropriate Phase II
testing.

If results of Phase II testing
indicate contamination
above screening levels,
applicant shall work with the
Santa Clara County
Department of
Environmental Health (or
Department of Toxic
Substances Control) to
implement an SGMP or
equivalent document.

Phase II investigation, as
well as SGMP and evidence
of regulatory oversight (if
required) shall be provided
to the Director of Planning,
Building and Code
Enforcement or the
Director’s designee.
oversight agency such
as the Department of
Toxic Substances
Control)

Director of Planning,
Building and Code
Enforcement or the
Director’s designee.
of SGMP or
equivalent
document (if
required).

Review Phase II
Investigation, as
well as any SGMP
or equivalent
document (if
prepared).
demolition
permits.

Planning, Building and Code Enforcement

CHRISTOPHER BURTON, DIRECTOR

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Oversight
Responsibility
Actions/Reports

Monitoring
Timing or
Schedule
Noise and Vibration
Impact NSE-1: Construction noise would exceed ambient levels by five dBA for a period of more than one year, which exceeds City thresholds defined in General Plan Policy EC-1.7, within 500 feet of residential uses or 200 feet of commercial or office uses.

MM NSE-1: Prior to the issuance of any grading,
building or demolition permits, whichever occurs first, the project applicant shall submit and implement a
construction noise logistics plan that specifies hours of construction, noise and vibration minimization
measures, posting and notification of construction
schedules, equipment to be used, and designation of a
noise disturbance coordinator to the Director of
Planning, Building and Code Enforcement or
Director’s Designee. The noise disturbance coordinator
shall respond to neighborhood complaints and shall be
in place prior to the start of construction and the
construction noise logistics plan implemented during
construction to reduce noise impacts on neighboring
residents and other uses below the threshold of 5 dBA
within 500 feet of residential uses or 200 feet of
commercial or office uses. A telephone number for the
disturbance coordinator shall be conspicuously posted
at the construction site. The notice sent to neighbors
regarding the construction schedule shall be included
in the posted sign.

Consistent with the Downtown Strategy 2040 FEIR,
the noise logistic plan shall include, but is not limited to, the following measures:

Submit a construction noise
logistics plan that specifies
hours of construction, noise
and vibration minimization
measures, posting and
notification of construction
schedules, equipment to be
used, and designation of a
noise disturbance
coordinator to the Director
of Environmental Planner of
Planning, Building, and
Code Enforcement or the
Director’s designee.

Implement construction
noise logistics plan.

The noise disturbance
coordinator to respond to
neighborhood complaints
Prior to the issuance
of any grading or
demolition permits
(whichever occurs
first).

During
construction.

The noise
disturbance
coordinator in place
prior to the start of
construction.

Director of Planning,
Building, and Code
Enforcement or the
Director’s designee.

Review and
approve
construction noise
logistics plan.

Prior to the
issuance of any
grading or
demolition
permits
(whichever
occurs first).

Planning, Building and Code Enforcement

CHRISTOPHER BURTON, DIRECTOR

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Responsibility
Actions/Reports

Monitoring
Timing or
Schedule
• The project contractor shall use “new
technology” power construction
equipment with state -of-the-art noise
shielding and muffling devices.
• All internal combustion engines used on
the project site shall be equipped with
adequate mufflers and shall be in go od
mechanical condition to minimize noise
created by faulty or poorly maintained
engines or other components.
• The project contractor shall use “new
technology” power construction
equipment with state -of-the-art noise
shielding and muffling devices. All
internal combustion engines used on the
project site shall be equipped with
adequate mufflers and shall be in good
mechanical condition to minimize noise
created by faulty or poorly maintained
engines or other components.
• The project contractor shall locate staging
areas and construction material areas as far
away as possible from adjacent land uses.

Impact NSE-2: Construction of the project would generate vibration levels exceeding the General Plan threshold of 0.08 in/sec PPV or more at historic buildings within 60 feet of the project site and of 0.2 in/sec PPV or more at buildings of normal conventional construction located within 25 feet of the project site.

MM NSE-2: Prior to the issuance of any grading,
building or demolition permits (whichever occurs
first), the project applicant shall implement a
construction vibration monitoring plan to document
Submit a construction
vibration monitoring plan to
document conditions of
existing conventional
Prior to the issuance
of any grading or
demolition permits
Director of Planning,
Building, and Code
Enforcement or the
Director’s designee.

Review and
approve the
construction
Prior to the
issuance of any
grading or
demolition

Planning, Building and Code Enforcement

CHRISTOPHER BURTON, DIRECTOR

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Oversight
Responsibility
Actions/Reports

Monitoring
Timing or
Schedule
conditions prior to, during, and after vibration
generating construction activities. All plan tasks shall be undertaken under the direction of a licensed
Professional Structural Engineer in the State of
California and be in accordance with industry-accepted
standard methods. The construction vibration
monitoring plan shall include, but not be limited to, the following measures:
• The report shall include a description of
measurement methods, equipment used,
calibration certificates, and graphics as
required to clearly identify vibration-
monitoring locations.
• A list of all heavy construction equipment to
be used for this project and anticipated time
duration of using the equipment that is known
to produce high vibration levels (clam shovel
drops, vibratory rollers, hoe rams, large
bulldozers, caisson drillings, loaded trucks,
jackhammers, etc.) shall be submitted to the
Director of Planning or Director’s designee of
the Department of Planning, Building, and
Code Enforcement by the contractor. This list
shall be used to identify equipment and
activities that would potentially generate
substantial vibration and to define the level of
effort required for continuous vibration
monitoring. Phase demolition, earth-moving,
buildings within 30 feet of
the project site and historic
buildings within 60 feet of
the project site.

Implement the construction
vibration monitoring plan.

Conduct a post-construction
survey on structures where
either monitoring has
indicated high vibration
levels or complaints of
damage has been made.
(whichever occurs
first).

Implementation to
occur prior to,
during, and after
vibration generating
construction
activities.

Within 14 days of
completion of
construction.
monitoring
vibration plan.

Receive associated
monitoring and
post-construction
reports.
permits
(whichever
occurs first).

Ongoing
throughout
construction.

Planning, Building and Code Enforcement

CHRISTOPHER BURTON, DIRECTOR

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Responsibility
Actions/Reports

Monitoring
Timing or
Schedule
and ground impacting operations so as not to
occur during the same time period.
• Where possible, use of the heavy vibration-
generating construction equipment shall be
prohibited within 60 feet of any adjacent
historical building and within 30 feet of any
adjacent conventional building.
• Document conditions at all historic structures
located within 60 feet of construction and at
all conventional structures within 30 feet of
construction prior to, during, and after
vibration generating construction activities.

All plan tasks shall be undertaken under the
direction of a licensed Professional Structural
Engineer in the State of California and be in
accordance with industry-accepted standard
methods. Specifically:
o Vibration limits shall be applied to
vibration-sensitive structures located
within 60 feet of any construction
activities identified as sources of high
vibration levels.
o Performance of a photo survey, elevation
survey, and crack monitoring survey for
each historic structure within 60 feet and
for each conventional structure within 30
feet of construction activities. Surveys
shall be performed prior to any
construction activity, in regular intervals

Planning, Building and Code Enforcement

CHRISTOPHER BURTON, DIRECTOR

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Timing of
Compliance

Oversight
Responsibility
Actions/Reports

Monitoring
Timing or
Schedule
during construction, and after project
completion, and shall include internal and
external crack monitoring in structures,
settlement, and distress, and shall
document the condition of foundations,
walls and other structural elements in the
interior and exterior of said structures.
• Develop a vibration monitoring and
construction contingency plan to identify
structures where monitoring would be
conducted, set up a vibration monitoring
schedule, define structure-specific vibration
limits, and address the need to conduct photo,
elevation, and crack surveys to document
before and after construction conditions.

Construction contingencies shall be identified
for when vibration levels approached the
limits.
• At a minimum, vibration monitoring shall be
conducted during demolition and excavation
activities.
• Designate a person responsible for registering
and investigating claims of excessive
vibration. The contact information of such
person shall be clearly posted on the
construction site.
• Conduct a post-construction survey on
structures where either monitoring has
indicated high vibration levels or complaints

Planning, Building and Code Enforcement

CHRISTOPHER BURTON, DIRECTOR

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Compliance

Oversight
Responsibility
Actions/Reports

Monitoring
Timing or
Schedule
of damage has been made. Make appropriate
repairs or compensation where damage has
occurred as a result of construction activities.

The survey shall be submitted to the Director
of Planning, Building and Code Enforcement
or the Director’s designee within 14 days of
completion of repairs.

Source: Addendum to the Downtown Strategy 2040 Final Environmental Impact Report for Eterna Tower Mixed-Use Development (H20-026), City of San José, August 2022.

Planning, Building and Code Enforcement

CHRISTOPHER BURTON, DIRECTOR
Eterna Tower Mixed-Use Development

File No. H20-026

Addendum to the Downtown Strategy 2040 Final Environmental Impact Report

RESPONSE TO APPEAL

November 2022

CEQA Lead Agency:

City of San José
Department of Planning Building and Code Enforcement
200 East Santa Clara Street
San José, CA 95113

In Consultation with:

Denise Duffy & Associates, Inc.
947 Cass Street
Suite 5
Monterey, CA 93940
Exhibit E

Denise Duffy & Associates, Inc.

PLANNING AND ENVIRONMENTAL CONSULTING

Denise Duffy & Associates, Inc. ▪ 947 Cass Street, Suite 5 ▪ Monterey, CA 93940 ▪ (831) 373-4341 Memorandum
To: M aira Blanco, Planner
City of San José

From: Leianne Humble, Senior Project Manager
Denise Duffy & Associates, Inc.

Date: November 30, 2022

Subject: Eterna Tower – Responses to Appeal of Environmental Determination

The City of San José approved a Site Development Permit, File No. H20 -026, for the Eterna Tower Mixed Use Development Project at the August 24, 2022 Director’s Hearing and considered and adopted the Addendum to the Downtown Strategy 2040 Final Environmental Impact Report (EIR Addendum) prepared for the project, in accordance with CEQA.

After the Director’s Hearing, the City received one timely environmental appeal on the Director’s decision from the following appellants:
• Silicon Valley Residents for Responsible Development c/o Kelilah Federman, Adams Broadwell Joseph & Cardozo
As described in further detail below, the environmental appeals do not raise any new issues about the project’s environmental impacts, provide no substantial evidence in support of a fair argument that the project, after mitigation, would result in a significant, unavoidable impact, or provide information indicating the project would result in new environmental impacts or impacts substantially greater in severity than disclosed in the EIR Addendum.

The following pages contain list the organization that submitted an appeal on the City’s decision to approve the EIR Addendum and the City’s formal response to the appeal. The specific comments have been excerpted from the appeal and are presented as “Comment” with a response directly following (“Response”). A copy of the appeal submitted to the City of San José is attached to this document in Attachment A.

Eterna Tower Mixed-Use Development 2 Response to Appeal SECTION 1.0 APPELLANT

Appeal Received From Date of
Appeal
Attachment Total
Number of
Pages
A. Adams Broadwell Joseph &
Cardozo
8/26/2022 Yes 70

Eterna Tower Mixed-Use Development 3 Response to Appeal A. Adams Broadwell Joseph & Cardozo (dated August 26, 2022)

Comment A.1: We are writing on behalf of Silicon Valley Residents for Responsible Development (“Silicon Valley Residents”) to appeal the San Jose Planning Director’s August 24, 2022 environmental clearance determination for and approval of the Eterna Tower Mixed-Use Development Project (File No. H20-026) (“Project”),1 based on the Addendum (“Addendum”) to the Downtown Strategy 2040 Final Environmental Impact Report (“Downtown Strategy 2040 FEIR”) for the Project prepared by the City of San Jose (“City”) pursuant to the California Environmental Quality Act (“CEQA”).
2 This Appeal is accompanied by payment of the required appeal fee of $250 in accordance with the City of San Jose’s Planning Application Filing Fee Schedule.3

The Project, proposed by ROYGBIV Real Estate Development LLC (“Applicant”) includes construction of a 26-story, 184,667-gross square foot mixed-use building on the approximately 0.18- acre site at 17 and 29 East Santa Clara Street in downtown San José.4 The Project would include 192 residential units and approximately 5,217 square feet of office space on the second floor. The Project site is currently occupied by a pair of two-story buildings, one of which (17 East Santa Clara Street) is an identified Structure of Merit on the City’s Historic Resources Inventory 5; both are proposed for
demolition.

The Project is within the DC Downtown Primary Commercial Zoning District, and the Downtown General Plan Designation.
6 The Project is also located within the Downtown Employment Priority Area, which requires a minimum 4.0 FAR of commercial use within residential / commercial mixed- use projects.7 Construction of the Project would occur over a period of 29 months.8 The Project would include a diesel-powered backup generator.9

Response A.1: The above description is a general description of the proposed project and does not raise any issue related to adequacy of the environmental documents. Therefore, no further response is required.

Comment A.2: This Appeal letter, and Silicon Valley Residents’ attached August 23, 2022 comments to the Planning Director,
10 demonstrate that the Planning Director’s decision to approve the Project violated CEQA, land use laws and the City’s municipal codes, and was not supported by substantial evidence in the record. Specifically, our prior comments, and the comments of our expert consultant James Clark of Clark & Associates identified several flaws in the City’s environmental

1 City of San Jose, Planning, Building and Code Enforcement, Planning Director Hearing (August 24, 2022) Action Minutes.

Available at: https://www.sanjoseca.gov/home/showpublisheddocument/88897 2 Pub. Resources Code (“PRC”) §§ 21000 et seq.; 14 Cal. Code Regs. (“CCR” or “CEQA Guidelines”) §§15000 et seq. 3 City of San Jose, Planning Application Filing Fee Schedule, Effective August 15, 2022. Available at:
https://www.sanjoseca.gov/home/showdocument?id=24803.
4 City of San Jose, Addendum to the Downtown Strategy 2040 Final Environmental Impact Report for Eterna Tower Mixed-Use Development, File No. H20-026 (August 5, 2022) (hereinafter “Addendum”) 5 Addendum, Appendix B, Historical Evaluation, p. 1; City of San Jose, Planning, Building & Code Enforcement, Historic Resources Inventory.
6 San Jose Zoning Code § 20.70.100.
7 City of San Jose, Site Development Permit (H20-026) p. 10 of 28. 8 Addendum p. 6.
9 Id. at 1.
10 Silicon Valley Residents for Responsible Development’s August 23, 22 written comments to the Planning Director are attached hereto as Exhibit A and incorporated by reference.

Eterna Tower Mixed-Use Development 4 Response to Appeal analysis, and provided new information and substantial evidence demonstrating that the Addendum fails as an informational document under CEQA and is inappropriate under CEQA because it identifies significant environmental impacts not discussed in the Downtown Strategy 2040 FEIR, fails to comply with the requirements for tiering from a program-level environmental impact report, fails to evaluate the project-level impacts in the areas of public health, air quality, contaminant hazards and historical resources, and lacks substantial evidence to support the City’s environmental conclusions.

Response A.2: The above contains general allegations related to adequacy of the environmental documents. Therefore, no further response is required. Specific responses to the other parts of the letter are addressed below.

Comment A.3: This Appeal is “based upon issues that were raised previously either orally or in writing” to the Planning Director prior to approval of the Project, as specified by Section 21.04.140 subdivision (E)(3) of the San Jose Municipal Code and as allowed pursuant to CEQA and State land use laws.
11 This Appeal is based on the issues raised in Silicon Valley Residents’ August 23, 2022 comments, and in oral comments at the August 24, 2022 Planning Director Hearing.12

Silicon Valley Residents urges the City Council to grant this Appeal and remand the Project to City Staff to prepare a Subsequent EIR for the Project. Silicon Valley Residents reserves the right to submit supplemental comments and evidence at any later hearings and proceedings related to the Project, in accordance with State law.
13 Response A.3: The comment does not raise any issue related to adequacy of the environmental documents. Therefore, no further response is required.

I. STATEMENT OF INTEREST

Comment A.4: Silicon Valley Residents is an unincorporated association of individuals and labor organizations that may be adversely affected by the potential public and worker health and safety hazards, and the environmental and public service impacts of the Project. Residents includes International Brotherhood of Electrical Workers Local 332, Plumbers & Steamfitters Local 393, Sheet Metal Workers Local 104, Sprinkler Fitters Local 483, along with their members, their families, and other individuals who live and work in the City of San José.

Individual members of Silicon Valley Residents live, work, recreate, and raise their families in the City and in the surrounding communities. Accordingly, they would be directly affected by the Project’s environmental and health and safety impacts. Individual members may also work on the Project itself. They will be first in line to be exposed to any health and safety hazards that exist on site.

11 San Jose Muni. Code § 21.04.140 subd. (E)(3) (providing that “[n]o appeal shall be considered unless it is based upon issues that were raised previously either orally or in writing to a recommending body or a decision-making body at or prior to a public hearing whenever the underlying project is considered at a public hearing.”) 12 Exhibit A
13 Gov. Code § 65009(b); PRC § 21177(a); Bakersfield Citizens for Local Control v. Bakersfield (“Bakersfield”) (2004) 124 Cal.

App. 4th 1184, 1199-1203; see Galante Vineyards v. Monterey Water Dist. (1997) 60 Cal. App. 4th 1109, 1121.

Eterna Tower Mixed-Use Development 5 Response to Appeal In addition, Silicon Valley Residents has an interest in enforcing environmental laws that encourage sustainable development and ensure a safe working environment for its members. Environmentally detrimental projects can jeopardize future jobs by making it more difficult and more expensive for businesses and industries to expand in the region, and by making the area less desirable for new businesses and new residents. Indeed, continued environmental degradation can, and has, caused construction moratoriums and other restrictions on growth that, in turn, reduce future employment opportunities.

Response A.4: The above contains general allegations related to adequacy of the environmental documents. Therefore, no further response is required. Specific responses to the other parts of the letter are addressed below.

II. LEGAL BACKGROUND

Comment A.5: CEQA has two basic purposes, neither of which is satisfied by the Addendum.

CEQA is designed to inform decision makers and the public about the potential, significant environmental impacts of a project before harm is done to the environment. 14 The EIR is the “heart”
of this requirement.15 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.”16

To fulfill this function, the discussion of impacts in an EIR must be detailed, complete, and reflect a good faith effort at full disclosure.”
17 An adequate EIR must contain facts and analysis, not just an agency’s conclusions.18 CEQA requires an EIR to disclose all potential direct and indirect, significant environmental impacts of a project.19

Further, CEQA directs public agencies to avoid or reduce environmental damage when possible by requiring imposition of mitigation measures and by requiring the consideration of environmentally superior alternatives.
20 If an EIR identifies potentially significant impacts, it must then propose and evaluate mitigation measures to minimize these impacts.21 CEQA imposes an affirmative obligation on agencies to avoid or reduce environmental harm by adopting feasible project alternatives or mitigation measures.22 Without an adequate analysis and description of feasible mitigation measures, it would be impossible for agencies relying upon the EIR to meet this obligation.

Under CEQA, an EIR must not only discuss measures to avoid or minimize adverse impacts, but must ensure that mitigation conditions are fully enforceable through permit conditions, agreements or other legally binding instruments.
23 A CEQA lead agency is precluded from making the required

14 14 Cal. Code Regs. (“CCR”) § 15002(a)(1); 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. 15 No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 84. 16 County of Inyo v. Yorty (1973) 32 Cal.App.3d 795, 810. 17 CEQA Guidelines § 15151; San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1994) 27 Cal.App.4th 713, 721-722.
18 See Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 568. 19 PRC § 21100(b)(1); 14 CCR § 15126.2(a).
20 14 CCR § 15002(a)(2) and (3); Berkeley Jets, 91 Cal.App.4th at 1354; Laurel Heights Improvement Ass’n v. Regents of the University of Cal. (1998) 47 Cal.3d 376, 400.
21 PRC §§ 21002.1(a), 21100(b)(3).
22 Id., §§ 21002-21002.1
23 14 CCR § 15126.4(a)(2).

Eterna Tower Mixed-Use Development 6 Response to Appeal CEQA findings unless the record shows that all uncertainties regarding the mitigation of impacts have been resolved; an agency may not rely on mitigation measures of uncertain efficacy or feasibility.24 This approach helps “ensure the integrity of the process of decision by precluding stubborn problems or serious criticism from being swept under the rug.”25

When an EIR has previously been prepared that could apply to the Project, CEQA requires the lead agency to conduct subsequent or supplemental environmental review when one or more of the following events occur:

(a) Substantial changes are proposed in the project which will require major revisions of the environmental impact report;

(b) Substantial changes occur with respect to the circumstances under which the project is being undertaken which will require major revisions in the environmental impact report; or

(c) New information, which was not known and could not have been known at the time the environmental impact report was certified as complete, becomes available. 26 The CEQA Guidelines explain that the lead agency must determine, on the basis of substantial evidence in light of the whole record, if one or more of the following events occur:

(1) Substantial changes are proposed in the project which will require major revisions of the previous EIR due to the involvement of new significant effects or a substantial increase in the severity of previously identified effects;

(2) Substantial changes occur with respect to the circumstances under which the project is undertaken which will require major revisions of the previous EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; or

(3) New information of substantial importance, which was not known and could not have been known with the exercise of reasonable diligence at the time the previous EIR was certified as complete or the negative declaration was adopted, shows any of the following:

(A) The project will have one or more significant effects not discussed in the previous EIR or negative declaration;

(B) Significant effects previously examined will be substantially more severe than shown in the previous EIR;

(C) Mitigation measures or alternatives previously found not to be feasible would in fact be feasible, and would substantially reduce one or more significant effects of the project, but the project proponents decline to adopt the mitigation measure or alternative; or

24 Kings County Farm Bur. v. County of Hanford (1990) 221 Cal.App.3d 692, 727-28 (a groundwater purchase agreement found to be inadequate mitigation because there was no record evidence that replacement water was available). 25 Concerned Citizens of Costa Mesa, Inc. v. 32nd Dist. Agricultural Assn. (1986) 42 Cal.3d 929, 935. 26 PRC, § 21166 (emphasis added).

Eterna Tower Mixed-Use Development 7 Response to Appeal

(D) Mitigation measures or alternatives which are considerably different from those analyzed in the
previous EIR would substantially reduce one or more significant effects on the environment, but the project proponents decline to adopt the mitigation measure or alternative.
27 Only where none of the conditions described above calling for preparation of a subsequent or supplemental EIR have occurred may the lead agency consider preparing a subsequent negative declaration, an addendum or no further documentation.
28 For addenda specifically, CEQA allows an
addendum to a previously certified EIR if “some changes or additions are necessary but none of the conditions described in Section 15162 calling for preparation of a subsequent EIR have occurred.”29 The City’s decision not to prepare a Subsequent EIR and to instead rely on an addendum must be supported by substantial evidence.30

Here, the City lacks substantial evidence for its decision not to prepare a Subsequent EIR because at least one of the triggering conditions in Section 15162 has occurred. As explained below, substantial evidence shows that the Project may have one or more significant effects not discussed in the Downtown Strategy 2040 EIR. Specifically, the Project may have significant impacts associated with air quality and public health, as described by Dr. Clark. Moreover, the Addendum specifically recognizes potentially significant impacts (and proposes mitigation measures) with respect to air quality, soil and groundwater hazards, and noise and vibration—impacts and mitigation that were not addressed in the 2040 Downtown Strategy EIR. This fact alone makes an addendum inappropriate under CEQA and requires preparation of an EIR or mitigated negative declaration (“MND”) to be circulated for public review and comment.

Accordingly, Dr. Clark’s substantial evidence, and the City’s own recognition of potentially significant impacts not previously addressed, require that the City prepare and circulate for public comment a Subsequent EIR or MND that adequately addresses all of the Project’s potentially significant impacts and proposes appropriate mitigation measures. 31 Response A.5: This comment indicates that the EIR Addendum is inadequate and suggests that a Subsequent EIR is required. As presented in the responses to this letter below, the assumptions and conclusions made in the EIR Addendum are accurate, adequate, and supported by substantial evidence. Accordingly, pursuant to Section 15164 of the CEQA Guidelines, the City of San José prepared an Addendum to the San José Downtown Strategy 2040 Final Environmental Impact Report and addenda thereto because minor changes made to the project, as analyzed in the Addendum, did not raise any of the conditions or circumstances described in CEQA Guidelines Section 15162 calling for the preparation of a subsequent EIR.

III. THE CITY IMPROPERLY RELIED ON AN ADDENDUM

27 14 CCR, § 15162(a)(1)-(3) (emphasis added).
28 14 CCR, § 15162(b).
29 14 CCR, § 15164
30 Id. §§ 15162 (a), 15164(e), and 15168(c)(4).
31 14 CCR, § 15162 (“no subsequent EIR shall be prepared for that project unless the lead agency determines, on the basis of substantial evidence in the light of the whole record, one of more of the following [triggering actions has occurred]”); § 15164 (“The [agency’s] explanation [to not prepare a subsequent EIR pursuant to Section 15162] must be supported by substantial evidence.”).

Eterna Tower Mixed-Use Development 8 Response to Appeal

Comment A.6: An addendum to an EIR is only appropriate if some changes or additions to the prior EIR are necessary, but none of the conditions described in Guidelines section 15162 have occurred.

Where, as here, the project will have one or more significant impacts not discussed in the previous EIR, an addendum is inappropriate. The Addendum specifically identifies several potentially significant impacts not discussed in the Downtown Strategy 2040 FEIR, including Impact AQ-1 (infant cancer risk from exposure to diesel particulate matter during project construction), Impact HAZ-1 (exposure of construction workers and the public to soil and groundwater contaminants), Impact NSE-1 (construction noise in excess of the City’s General Plan thresholds) and Impact NSE-2 (vibrations from construction exceeding the City’s General Plan thresholds).

As to each of these impacts, the Addendum also purports to adopt mitigation measures to address these impacts. None of these Project-specific impacts or mitigation measures were disclosed, analyzed or considered in the Downtown Strategy 2040 EIR. CEQA requires that these impacts and proposed mitigation measures be included in an EIR and circulated for public review and comment.

Because the City has identified potentially significant impacts (and proposed mitigation measures) not discussed in the previous EIR, the Addendum is not appropriate and the City must prepare and circulate a subsequent EIR pursuant to Guidelines section 15162.

In addition, the City seeks to rely on CEQA Guidelines Section 15152 to tier from the Downtown Strategy 2040 EIR. Tiering refers to “using the analysis of general matters contained in a broader EIR…with later EIRs or negative declarations” and is appropriate when the sequence of analysis is from a program EIR to a site-specific EIR or negative declaration. 32 The CEQA Guidelines only
recognize the use of an EIR or a negative declaration, not an addendum, to tier from a program EIR.

The Addendum is not an appropriate environmental review document to tier from the Downtown Strategy 2040 EIR.

Moreover, the Downtown Strategy 2040 EIR does not contemplate the use of density bonuses to inflate the size and impacts of Projects tiering from it. The City’s reliance on anticipated density bonus approvals to claim that the Project is currently “consistent” with existing zoning and land use plans so as to rely on an addendum to the Downtown Strategy 2040 EIR is entirely unsupported and contrary to CEQA.

CEQA requires that the lead agency determine the appropriate form of CEQA review at the time the project application is submitted, not based on speculative future approvals. 33 CEQA requires lead
agency to analyze the ‘whole’ of the project – this includes all foreseeable discretionary approvals.34 For example, in Laurel Heights Improvement Association v. Regents of University of California 35the California Supreme Court rejected an EIR where the agency failed to consider the whole of the project. The agency defined the project as involving “only the acquisition and operation of an

32 14 CCR, § 15152(a) and (b).
33 CEQA Guidelines, § 15063 (timing and process of initial study); Pub. Resources Code, §§ 21003.1 (early identification of environmental effects), 21006 (CEQA is integral to agency decision making). 34 Pub. Resources Code, § 21082.2(a) (“The lead agency shall determine whether a project may have a significant effect on the environment based on substantial evidence in light of the whole record”); CEQA Guidelines, § 15003(h) (“The lead agency must consider the whole of an action, not simply its constituent parts, when determining whether it will have a significant environmental effect” and citing Citizens Assn. for Sensible Development of Bishop Area v. County of Inyo (1985) 172 Cal.App.3d 151); Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 401 (“Laurel Heights I”)
35 Laurel Heights I, supra, 47 Cal.3d 376.

Eterna Tower Mixed-Use Development 9 Response to Appeal existing facility and negligible or no expansion of use of existing use at that facility.”36 However, the Court found that future expansion of the project was a reasonably foreseeable consequence of the project and would likely change the scope or nature of the initial project or its environmental effects.37 Here, approval of the Project’s requested density bonus is a reasonably foreseeable consequence of the Project. The City therefore has a duty to analyze the impacts of the increase in density (and other associated impacts) that would result from approval of the density bonus.

When viewed as a whole, there is no dispute that the Project exceeds applicable zoning, density and height requirements, and does not qualify for approval under the City’s Design Review and Historic Preservation requirements. Rather, the Project requires a conditional use permit (“CUP)”, and must undergo applicable CUP permitting requirements.

By ignoring the Project’s facial inconsistency with City land use requirements, the potentially significant impacts associated with those inconsistencies escape environmental review. As a result, the City has failed to comply with its CEQA obligations to disclose the nature and severity of the Project’s impacts, and the City lacks substantial evidence to support its density bonus findings that the Project’s proposed floor area ratio (“FAR”) waiver and additional density bonus units would not have a specific adverse impact upon public health or safety, the environment, or harm historical property.
38 The Project’s FAR waiver and density bonus may exacerbate the Project’s impacts from air quality, public health, greenhouse gas emissions, and harm to historical property.

Response A.6: This comment indicates that the EIR Addendum is inadequate because it identifies potentially significant impacts not discussed or disclosed in the Downtown Strategy 2040 FEIR. The analysis in the EIR Addendum is consistent with the Downtown Strategy 2040 FEIR as presented in the conclusions at the end of each chapter of the EIR Addendum.

As presented in the responses to this letter below, the assumptions and conclusions made in the EIR Addendum are accurate, adequate, and supported by substantial evidence. The City has determined that preparation of a Subsequent EIR is not warranted.

The subject site is designated Downtown on the Land Use/Transportation Diagram of the Envision San José 2040 General Plan, which allows residential density up to 800 dwelling units per acre (du/ac), intended for buildings between three and thirty stories in height. The Downtown designation is the primary designation for new high-intensity office, retail, service, residential, and entertainment uses in the Downtown area. All development within this designation should enhance the “complete community” in downtown, support pedestrian and bicycle circulation, and increase transit ridership.

The project site is also located within the Downtown Employment Priority Area, which requires a minimum 4.0 FAR of commercial use within residential / commercial mixed- use projects. This designation is applied to Downtown sites planned for intensive job growth because of the area’s proximity and good access to the future Downtown BART station.

The subject site is located in the DC Downtown Primary Commercial Zoning District, which allows for range of uses including residential, commercial, entertainment,

36 Laurel Heights I, supra, 47 Cal.3d at p. 388.
37 Laurel Heights I, supra, 47 Cal.3d at p. 396.
38 Gov. Code, § 65589.5(d)(2).

Eterna Tower Mixed-Use Development 10 Response to Appeal education, and retail with a Site Development Permit.

The project proposes 20 percent of the total number of units as restricted affordable to low-income residents (28 units). Per the State Density Bonus Law (Government Code Section 65915), the project is allowed a 35 percent Density Bonus. With the density bonus applied, the maximum density is 1,080 dwelling units per acre. The project includes 192 units on 0.18-gross acres, or 1,066 dwelling units per acre. The project density is therefore consistent with the General Plan Land Use Designation with the allowed density bonus.

Additionally, the project applicant has requested a waiver to reduce the required 4.0 FAR of commercial square footage to 1.56 FAR. Because the project has been deemed eligible for the Density Bonus under State Law, the request for reduced commercial square footage is allowed as a waiver.

In addition, per the State’s Density Bonus Law, if any development standard would physically prevent the project from being built at the permitted density, the developer may propose to have those standards waived or reduced. The city or county is not permitted to apply any development standard which physically precludes the construction of the project at its permitted density unless strict findings are made for denial. The City, however, is not required to waive or reduce development standards that would cause a public health or safety problem, cause an environmental problem, harm historical property, or would be contrary to law. There is no limit on the number of development standard waivers that may be requested or granted. In other words, the project qualifies for unlimited waivers to development standards, unless a waiver would cause a public health or safety problem, would cause harm to the environment or historical property, or would be contrary to law. The following five waivers were granted consistent with the State’s Density Bonus Law:
• Reduce parking requirement to zero
• Reduce off-street loading requirement to zero
• Reduce commercial requirement from 4.0 FAR to 1.56 FAR • Eliminate Downtown Design Guidelines Section 4.2.2, Standard ‘a’ Height Transition • Eliminate Downtown Design Guidelines Section 4.2.2, Standard ‘c’ Rear Transition

The Eterna Tower Mixed-Use Development Project Addendum accounts for the density enumerated bonus and waivers in the analysis. The allowed density bonus is still within the residential pool assumptions in the Downtown Strategy 2040 FEIR. Therefore, the potential impacts of the increased density and waivers were analyzed in the EIR Addendum, and no further response is required.

As stated in the record at the August 24, 2022 Director’s Hearing and as discussed in the EIR Addendum (Project Description and Section E. Cultural Resources), the existing buildings at 17 and 29 East Santa Clara Street are not historical resources as they are not designated City Landmarks or eligible for the local or state registers. The structure at 17 East Santa Clara

Eterna Tower Mixed-Use Development 11 Response to Appeal Street is a Structure of Merit which - although valuable to the City’s downtown fabric - does not rise to the level of a historical resource in accordance with CEQA. Therefore, the project does not require a Historic Preservation Permit and is not subject to Title 13 (Chapter 13.48 – Historic Preservation) as suggested by the appellant.

IV. THE PROJECT RESULTS IN SIGNIFICANT AIR QUALITY IMPACTS NOT ANALYZED IN THE DOWNTOWN STRATEGY 2040 EIR

Comment A.7: A. The Air Quality Impacts of the Project Would Result in Unacceptable Negative Effects on Adjacent Properties

Project construction may result in significant emissions of diesel particulate matter and dust which will cause unacceptable negative effects on adjacent sensitive receptors, including the future 19 North Second Street Affordable Senior Housing project to the northeast of the Project site. 39 The City
should not have approved the Site Development Permit for the Project, because the City could not support a finding that:

The environmental impacts of the project, including but not limited to noise, vibration, dust, drainage, erosion, storm water runoff, and odor which, even if insignificant for purposes of the California Environmental Quality Act (CEQA), will not have an unacceptable negative affect on adjacent property or properties.

The dust and diesel particulate matter emissions from the Project are significant under CEQA and result in an unacceptable negative effect on adjacent properties. 40 Additionally, absent the use of Tier
4 Final engines, the project will result in unacceptable negative effects associated with diesel particulate matter. These impacts will adversely impact sensitive receptors at adjacent properties. The maximum excess residential cancer risks at these locations would be 17.19 per million for infant risk, which is greater than the Bay Area Air Quality Management District (BAAQMD) significance threshold of 10 in one million for cancer risk.
41 The dust from construction may negatively affect the sensitive receptors within adjacent properties, but the Addendum fails to adequately analyze and mitigate such impacts. As such, the City did not have substantial evidence to make the necessary findings to approve the Site Development Permit. The City must adequately analyze and mitigate the Project’s significant air, dust, and health risk impacts in a Subsequent EIR to comply with CEQA.

Response A.7: The project’s air quality analysis (Section C of the EIR Addendum) was based on an Air Quality Assessment prepared by Illingworth and Rodkin, Inc. The project’s air quality assessment did analyze the unmitigated and mitigated health risk impacts of the project on adjacent sensitive receptors. The unmitigated maximum cancer risk impact (from both construction and operation of the project) would result in a risk of 17.19 per million, assuming infant exposure during construction when emissions are greatest. The mitigated maximum cancer risk impact, with mitigation including the Downtown Strategy 2040 FEIR best management practices to control dust and exhaust during construction and the use of

39 Clark Comments, p. 2; Addendum p. 54.
40 Clark Comments, p. 5.
41 Id.

Eterna Tower Mixed-Use Development 12 Response to Appeal construction equipment with Tier 4 Interim emissions standard engines, would result in a risk of 4.24 per million for infant risk. The mitigated cancer risk impact is below the BAAQMD significance threshold of 10 in one million for cancer risk, and therefore, results in a less- than-significant impact with mitigation. The 19 North Second Street Project (File Nos. HP21- 007, SP21-044) is included in the background analysis. As detailed in the Air Quality section of the EIR Addendum, the PM 2.5 concentration Maximally Exposed Individual would be located at the future 19 North Second Street development (second floor, southwest corner); however, as stated above, with the implementation of best management practices to control dust and exhaust during construction and Mitigation Measure AQ-1, the project’s cancer risk would be reduced to below the single-source BAAQMD thresholds. The cancer risk, annual PM 2.5 concentration, and Hazard Index, unmitigated and mitigated, do not exceed the cumulative BAAQMD thresholds of 100, 0.8 micrograms per cubic meter ( µg/m3), and 10,
respectively. Tier 4 Interim equipment is still considered “Best Available Control Technology” and the construction equipment with Tier 4 Interim engines are more readily available in fleet mixes. The main difference from Tier 4 Final equipment is that Tier 4 Final has a greater Nitrogen Oxides (NOx) emissions reduction, which the air quality assessment concluded had less-than-significant construction period NOx emissions. The comment does not present new information that has not been previously analyzed or provided substantial evidence supporting a fair argument that the project would result in significant unavoidable impacts requiring preparation of a subsequent EIR. Therefore, no further analysis is required.

Comment A.8: B. The Project Fails to Implement Feasible Mitigation to Reduce Construction Air Emissions

The Downtown Strategy 2040 EIR includes measures that may reduce air quality impacts, but the Addendum fails to implement them. The Downtown Strategy 2040 EIR provides that additional measures that would reduce emissions include to “equip all construction equipment, diesel trucks, and generators with Best Available Control Technology for emission reductions of NO x and PM.”42

New information which was not known and could not have been known at the time of preparation of the Downtown Strategy 2040 EIR shows that the Best Available Control Technology for emission reductions of NOx and PM is through the use of Tier 4 Final Emission standard engines.43 The Downtown Strategy 2040 EIR does not require the use of Tier 4 final engines. The Addendum likewise does not require Tier 4 Final engines. Mitigation Measure (“MM”) AQ-1 provides:

1. All construction equipment larger than 25 horsepower used at the site for more than two continuous days or 20 hours total shall meet U.S. EPA Tier 4 emission standards for particulate matter (PM
10 and PM2.5), if feasible, otherwise,
a. If use of Tier 4 equipment is not available, alternatively use equipment that meets U.S.

EPA emission standards for Tier 3 engines and include particulate matter emissions control equivalent to CARB Level 3 verifiable diesel emission control devices that altogether achieve a minimum of 50 percent reduction in particulate matter exhaust in comparison to uncontrolled equipment.
b. Use of alternatively fueled or electric equipment.
44 42 City of San Jose, Downtown Strategy 2040 Integrated Final EIR, p. 64. 43 Clark Comments, p. 5.
44 Addendum p. 59.

Eterna Tower Mixed-Use Development 13 Response to Appeal Dr. Clark concluded that not only is MM AQ-1 not the Best Available Control Technology, but that Tier 4 Interim emissions and Tier 3 emissions standards would not adequately reduce the Project’s construction emissions to safe levels.45 Dr. Clark explains that Tier 3 equipment would put out substantially more particulate matter (PM10 and PM2.5) than Tier 4 Interim and Tier 4 Final equipment.46 Tier 3 equipment puts out 80% to 89% more PM10 than Tier 4 Interim equipment and 85% to 91% more PM10 than Tier 4 Final equipment. Tier 3 equipment puts out 81% to 89% more PM2.5 than Tier 4 Interim equipment and 85% to 92% more PM2.5 than Tier 4 Final equipment.47 Substantial evidence presented herein, and in Dr. Clark’s comments, that the Project’s air quality impacts may be reduced through the use of Tier 4 Final Mitigation, but such measures were not implemented in the Addendum nor the Downtown Strategy 2040 EIR.

A subsequent EIR must be prepared, as here, when mitigation measures or alternatives previously found not to be feasible would in fact be feasible, and would substantially reduce one or more significant effects of the project, but the project proponents decline to adopt the mitigation measure or alternative; or mitigation measures or alternatives which are considerably different from those analyzed in the previous EIR would substantially reduce one or more significant effects on the environment, but the project proponents decline to adopt the mitigation measure or alternative. 48 Here, the Addendum fails to incorporate the Best Available Control Technology in the form of Tier 4 Final engines. A subsequent EIR must be prepared because Tier 4 Final mitigation measures are considerably different from those analyzed in the previous EIR and would substantially reduce one or more significant effects on the environment, but the project proponents declined to adopt the mitigation measure. The City should grant this Appeal and require the preparation of a subsequent EIR to be circulated for public review in compliance with CEQA.

Response A.8: As noted in the above response, the air quality assessment analyzed the project’s construction risk assessment with the Downtown Strategy 2040 FEIR best management practices to control dust and exhaust during construction and the use of construction equipment with Tier 4 Interim emissions standard engines, which reduced the cancer risk impact to below the BAAQMD significance threshold. Tier 4 Interim equipment is still considered “Best Available Control Technology” and the construction equipment with Tier 4 Interim engines are more readily available in fleet mixes. The main difference between Tier 4 Final equipment and Tier 4 Interim equipment is that Tier 4 Final has a greater NOx emissions reduction as stated by the appellant; however, the Tier 4 Interim equipment assumed in the air quality assessment still concluded less-than-significant construction period NOx emissions. In the event that special equipment is needed and cannot be procured with engines that meet Tier 4 standards, Mitigation Measure AQ-1 states that engines meeting Tier 3 standards could be used; however, this equipment would have to be equipped with particulate matter emissions control equivalent to CARB Level 3 verifiable diesel emission control devices that altogether achieve a minimum of 50 percent reduction in particulate matter exhaust in comparison to uncontrolled equipment. Therefore, the use of Tier 4 Interim equipment, or some equipment that meets Tier 3 standards with CARB Level 3 verifiable diesel emission control devices (in the event that Tier 4 equipment is not available), sufficiently mitigates the project’s health risk impacts to below BAAQMD significance

45 Clark Comments, p. 5.
46 Clark Comments, p. 6.
47 Id.
48 14 CCR, § 15162(a)(1)-(3) (emphasis added)

Eterna Tower Mixed-Use Development 14 Response to Appeal thresholds as a Best Available Control Technology while meeting the measures included in the Downtown Strategy 2040 FEIR.

Comment A.9: C. The Addendum Relies on Inaccurate Air Quality Modeling

The Addendum is inadequate under CEQA for failing to accurately analyze the Project’s Air Quality impacts. Dr. Clark concluded that the Addendum relies on modeling which assumes the use of Tier 4 Final emission standards, but Tier 4 Final engines are not required by the Addendum or the EIR. 49 This results in the artificial reduction of the Project’s construction air emissions. Inaccurate modeling may not be relied on for determining the significance of air quality impacts. The lead agency’s significance determination with regard to each impact must be supported by accurate scientific and factual data.
50 An agency cannot conclude that an impact is less than significant unless it produces rigorous analysis and concrete substantial evidence justifying the finding.51

The failure to provide information required by CEQA is a failure to proceed in the manner required by CEQA.
52 Challenges to an agency’s failure to proceed in the manner required by CEQA, such as the failure to address a subject required to be covered in an EIR or to disclose information about a project’s environmental effects or alternatives, are subject to a less deferential standard than challenges to an agency’s factual conclusions.
53 In reviewing challenges to an agency’s approval of
an EIR based on a lack of substantial evidence, the court will “determine de novo whether the agency has employed the correct procedures, scrupulously enforcing all legislatively mandated CEQA requirements.”
54 Here, the City’s failure to provide accurate air modeling associated with the Tier 4 Final mitigation is a failure to disclose information about the Project’s environmental effects and results in a failure to proceed in the manner required by CEQA. A subsequent EIR must be prepared which accurately analyzes and mitigates the Project’s air emissions and includes a requirement to utilize Tier 4 Final Emission standards for Project Construction before the Project can be approved.

Response A.9: The commenter is incorrect in their assertion that the air quality modeling relied upon modeling that assumed the use of Tier 4 Final equipment. As noted in the above response, the use of Tier 4 Interim equipment was assumed in the modeling for mitigated impacts and would sufficiently mitigate the project’s health risk impacts to below BAAQMD significance thresholds as a Best Available Control Technology while meeting the measures included in the Downtown Strategy 2040 FEIR. The comment does not present new information that has not been previously analyzed or provided substantial evidence for the preparation of a subsequent EIR pursuant to CEQA Guidelines Section 15162; therefore, no further analysis is required.

Comment A.10: D. The Project Fails to Mitigate Air Quality Impacts Associated with Project Operation and the Backup Generator

The Project will utilize a stand-by diesel engine backup generator, which will be located on the basement level.
55 The Addendum states that the Generator would be operated for testing and

49 Id. at 5.
50 14 CCR § 15064(b).
51 Kings Cty. Farm Bur. v. Hanford (1990) 221 Cal.App.3d 692, 732. 52 Sierra Club v. State Bd. Of Forestry (1994) 7 Cal.4th 1215, 1236. 53 Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 435. 54 Id., Madera Oversight Coal., Inc. v. County of Madera (2011) 199 Cal. App. 4th 48, 102. 55 Addendum, p. 1; 54.

Eterna Tower Mixed-Use Development 15 Response to Appeal maintenance purposes, with a maximum of 50 hours per year of nonemergency operation under normal conditions.56 The Addendum and the Downtown Strategy 2040 FEIR failed to analyze the Project’s potential use of the backup generator for 200 hours per year or more, as described in Dr.

Clark’s comments.

As such, the Addendum fails to analyze the full extent of the Project’s operational air emissions by failing to accurately model the backup generators’ air emissions. According to SCAQMD Rules 1110.2, 1470, back-up generators are allowed to operate for up to 200 hours per year and maintenance cannot exceed more than 50 hours per year.
57 The Addendum must be revised to
quantify and analyze the full extent of the necessary maintenance and testing period for the generators onsite.

Second, the Addendum fails to analyze the Project’s use of backup generator during a power outage.

According to Dr. Clark, it is more likely that the Backup Generators would need to be used more than 150 hours per year, due to increasing Public Safety Power Shutoff (“PSPS”) events and extreme heat events.
58 During a PSPS event, the use of stationary generators is permitted as an emergency use. 59 For every
PSPS or extreme heat event, significant GHG emissions i.e., carbon dioxide equivalents and diesel particulate matter (“DPM”) will be released.
60 DPM has been identified as a toxic air contaminant,
composed of carbon particles and numerous organic compounds, including forty known cancer- causing organic substances.
61 Dr. Clark notes that the California Air Resources Board found that the 1,810 additional stationary generators during a PSPS in October 2019 generated 126 tons of NOx, 8.3 tons of particulate matter, and 8.3 tons of DPM.62 Therefore, the GHG, air quality, and DPM emission impacts associated with the use of the Backup Generator are significant, but the Addendum fails to adequately analyze or mitigate such impacts.63 The failure to analyze is a failure to proceed in a manner required by law.64 Challenges to an agency’s failure to proceed in the manner required by CEQA, such as the failure to address a subject required to disclose information about a project’s environmental effects or alternatives, are subject to a less deferential standard than challenges to an agency’s factual conclusions.65 In reviewing challenges to an agency’s approval of an EIR based on a lack of substantial evidence, the court will “determine de novo whether the agency has employed the correct procedures, scrupulously enforcing all legislatively mandated CEQA requirements.”66 Even when the substantial evidence standard is applicable to agency decisions to certify an EIR and approve a project, reviewing courts will not ‘uncritically rely on every study or analysis presented by a project proponent in support of its position. A clearly inadequate or unsupported study is entitled to no judicial deference.’”
67 56 Id. at 55.
57 Clark Comments, p. 9.
58 Clark Comments, p. 9.
59 17 CCR 93115.4(a)(30)(A)(2).
60 Clark Comments, p. 9.
61 Id.
62 California Air Resources Board, Potential Emissions Impact of Public Safety Power Shutoff (PSPS), Emission Impact:

Additional Generator Usage Associated with Power Outage (January 30, 2020). Available at:
https://ww2.arb.ca.gov/sites/default/files/2020-
01/Emissions_Inventory_Generator_Demand%20Usage_During_Power_Outage_01_30_20.pdf. 63 Clark Comments, p. 9.
64 Sierra Club v. State Bd. Of Forestry (1994) 7 Cal.4th 1215, 1236. 65 Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 435. 66 Id., Madera Oversight Coal., Inc. v. County of Madera (2011) 199 Cal. App. 4th 48, 102. 67 Berkeley Jets, 91 Cal.App.4th at 1355.

Eterna Tower Mixed-Use Development 16 Response to Appeal

The Addendum must be withdrawn, and the City must remand the Project to Staff to circulate a subsequent EIR for public review which adequately analyzes impacts associated with emissions from the Backup Generators.

Response A.10: Per direction by the BAAQMD, only emissions from routine testing and maintenance were considered in the analysis. The procedure is in accordance with BAAQMD Regulation 2, Rule 5 and the number of non-emergency operation hours per year is limited to 50 hours per the Airborne Toxic Control Measure for Stationary Toxic Compression Ignition Engines (Section 93115, Title 17 CCR). The District’s procedure for permitting emergency generators is to consider operation of the generators for up to 50 hours per year. There is no way to reliably predict the number of hours that a power outage would occur and therefore, 50 hours is the standard. Furthermore, the reference the commenter uses for the power shutoff operational hours for a generator is from South Coast Air Quality Management District (SCAQMD), not BAAQMD where the Project is located. For cancer risk calculations to support issuance of permits under Regulation 2, Rule 5, BAAQMD uses 50 hours operation per year averaged over 30 years. The air quality assessment used the same assumptions, except the generator would operate 28 years and there would be construction for two years (30-year total averaging period).

The project site is in San José, a highly urbanized area that has not been subject to Public Power Safety Shutoff (PSPS) events, so applying outage estimates from 2019 during these events is inappropriate. There are extreme heat events that in some cases cause rolling power outages. For any particular site, these are rare events that would not result in power loss for long periods of time (requiring the use of the back-up generator).

The EIR Addendum provides a reasonable worst-case assessment of emissions because actual generator use would likely be less than 50 hours per year. Testing schedules are typically 30 minutes or less biweekly (or 12 hours per year) per generator under no load when emissions are much lower. The generators were modeled to operate 50 hours per year at 73 percent of full load. The commenter does not provide any credible evidence that generators would operate on average more than 50 hours per year over the life of the project.

Lastly, the commenter provides no evidence that the use of the back-up emergency generator would cause significant impacts even if it were to run for 150 to 200 hours per year. The operational emissions of air pollutants affected by diesel engine operation (i.e., NOx and particulate matter) are well below the significant thresholds and cancer risk associated with mitigated construction emissions and generator operation are also well below thresholds. No further analysis is required.

V. THE PROJECT RESULTS IN SIGNIFICANT HAZARDS AND HAZARDOUS MATERIALS IMPACTS NOT ANALYZED IN THE DOWNTOWN STRATEGY 2040 EIR

Comment A. 11: A. The Addendum Fails to Adequately Analyze the Impacts of Hazardous Contamination

Eterna Tower Mixed-Use Development 17 Response to Appeal CEQA requires EIRs to analyze any significant environmental effects the project might cause or risk exacerbating by bringing development and people into the area affected.68 Both CEQA and the CEQA Guidelines require an analysis of a project's effects on the environment and human health.

CEQA also provides that the EIR should evaluate any potentially significant direct, indirect, or cumulative environmental impacts of locating development in areas susceptible to hazardous conditions, including both short-term and long-term conditions. 69 The Project risks exacerbating hazardous contamination in soil and groundwater by bringing development and people to the area affected. According to the Office of Environmental Health Hazard Assessment (OEHHA), on behalf of the California Environmental Protection Agency (CalEPA), the Project site is within the 91
st percentile in terms of groundwater threats.70 The Project is also within the 41st percentile for toxic releases from facilities.71 The Project site is adjoined on its northeastern corner by a site listed as an open Spills, Leaks, Investigations, and Cleanup (SLIC) release case in the regulatory database.72 The site is contaminated with halogenated volatile organic compounds (HVOCs), including PCE, in soil, soilgas, indoor air, and shallow groundwater at concentrations above their respective regulatory screening criteria at this site.73 In addition, elevated HVOC levels have been detected in soil, soil-gas, groundwater, and indoor air samples collected from the properties located north/northeast of the Project site.74

The Addendum fails to analyze the Project’s risk of exacerbating existing environmental conditions and bringing people to the area affected, in violation of CEQA. The Addendum must be withdrawn, and a Subsequent EIR pursuant to CEQA Guidelines Section 15162 must be prepared and circulated for public review.

Response A.11: Hazards and Hazardous Materials are discussed under Section I of the Eterna Tower Mixed-Use Development Project Addendum. As described in the EIR Addendum, a Phase I Environmental Site Assessment prepared by AEI Consultants, Inc., was performed for the project that identified hazardous materials contamination at the adjoining site located at 35 and 43 East Santa Clara Street from high volatility organic compounds.

Based on the analytical results obtained from this project site and other nearby properties, the adjoining open release case was identified as a potential impact.

Mitigation Measure HAZ-1 requires that the project applicant retain a qualified consultant to conduct a Phase II analysis consisting of focused sampling and analysis for contamination of soil, soil vapor, and/or groundwater on-site prior to issuance of any grading, building, or demolition permits. Sampling on the site would be under the regulatory oversight from the Santa Clara County Department of Environmental Health’s (SCCDEHs) Voluntary Cleanup Program, or an equivalent program by another oversight agency, to address soil and groundwater contamination discovered on the property. Based on the results, the project applicant must prepare, under the guidance of the oversight agency, a Site and Groundwater Management Plan (SGMP) or equivalent report. The SGMP or equivalent report must establish and implement remedial measures and/or soil management practices to ensure

68 14 CCR 15126.2(a); Cal. Building Industry Ass’n v. Bay Area Air Quality Mgmt. Dist. (2015) 62 Cal.4th 369, 388. 69 14 CCR 15126.2(a).
70 CalEnviroScreen 3.0 Results (June 2018 Update) Available at: https://oehha.ca.gov/calenviroscreen/report/calenviroscreen-30. 71 Id.
72 Addendum p. 124.
73 Id.
74 Addendum p. 124.

Eterna Tower Mixed-Use Development 18 Response to Appeal construction worker safety and the health of future workers and visitors. The comment does not present new information that has not been previously analyzed or provided substantial evidence supporting a fair argument that the project would result in significant unavoidable impacts requiring preparation of a subsequent EIR; therefore, no further analysis is required.

Comment A.12: B. The Addendum Fails to Mitigate the Impacts of Hazardous Contamination

“An EIR is inadequate if ‘[t]he success or failure of mitigation efforts ... may largely depend upon management plans that have not yet been formulated, and have not been subject to analysis and review within the EIR.’ ”
75 Here, MM HAZ-1 would require additional analysis and provide mitigation measures that should have been included in an EIR. The Addendum fails as an informational document for impermissibly deferred analysis and mitigation.

Mitigation Measure HAZ-1 is inadequate because it constitutes impermissibly deferred analysis. The formulation of mitigation measures in the proposed Site and Groundwater Management Plan is deferred until some future time in violation of CEQA.
76 “Impermissible deferral of mitigation
measures occur when an EIR puts off analysis or orders a report without either setting standards or demonstrating how the impact can be mitigated in the manner described in the EIR.”77 Here, the Addendum states that a Phase II Environmental Site Assessment will be conducted after Project approval, at which time additional groundwater sampling and mitigation may be proposed. 78 MM HAZ-1 provides:

The project applicant shall retain a qualified consultant to conduct a Phase II analysis consisting of focused sampling and analysis for contamination of soil, soil vapor, and/or groundwater on-site prior to issuance of any grading, building, or demolition permits.

Sampling on the site shall be under the regulatory oversight from the Santa Clara County Department of Environmental Health’s (SCCDEHs) Voluntary Cleanup Program, or an equivalent program by another oversight agency, to address soil and groundwater contamination discovered on the property. Removal and off-site disposal of the soil at appropriate landfills during construction of the basement level will likely constitute the mitigation required; however, the oversight agency will approve the proposed mitigation, or determine if additional groundwater sampling and mitigation is necessary. Based on the results of the contamination levels at the site, the project applicant shall prepare, under the guidance of the oversight agency, a Site and Groundwater Management Plan (SGMP) or equivalent report. The SGMP or equivalent report must establish and implement remedial measures and/or soil management practices to ensure construction worker safety and the health of future workers and visitors. The results of Phase II investigation and evidence of regulatory oversight, if required, and the appropriate plan such as an SGMP or equivalent document shall be provided to the Director of Planning, Building and Code Enforcement or the Director’s designee.

The CEQA Guidelines provide that “[t]he specific details of a mitigation measure…may be developed after project approval when it is impractical or infeasible to include those details during

75 Preserve Wild Santee v. City of Santee (2012) 210 Cal.App.4th 260, quoting Communities for a Better Environment v. City of Richmond (2010) 184 Cal.App.4th 70, 92, quoting San Joaquin Raptor Rescue Center v. County of Merced (2007) 149 Cal.App.4th 645 670.
76 14 CCR 15126.4(a)(1)(B).
77 City of Long Beach v. Los Angeles Unified School Dist. (2009) 176 Cal.App.4th 889, 915-916. 78 Addendum p. 126-127.

Eterna Tower Mixed-Use Development 19 Response to Appeal the project’s environmental review…”79 The Addendum does not state why conducting a Phase II site assessment or preparing a SGMP or identifying necessary mitigation measures were impractical or infeasible at the time the Addendum was drafted.

In Preserve Wild Santee v. City of Santee, the city impermissibly deferred mitigation where the EIR did not state why specifying performance standards for mitigation measures “was impractical or infeasible at the time the EIR was certified.”
80 The court determined that although the City must
ultimately approve the mitigation standards, this does not cure these informational defects in the EIR.81 Further, the court in Endangered Habitats League, Inc. v. County of Orange, held that mitigation that does no more than require a report to be prepared and followed, or allow approval by a county department without setting any standards is inadequate. 82 Here, the fact that the Site and
Groundwater Management Plan will be approved later by the Director of Planning, Building and Code Enforcement or the Director’s designee does not cure the informational defects in this Addendum.
83 The City should grant this Appeal and remand the Project to City Planning Staff to prepare a legally adequate subsequent EIR which fully analyzes and mitigates the Project’s hazards and hazardous contamination impacts to satisfy CEQA.

Response A.12: Conducting a Phase II assessment and testing was not feasible on the project site due to the presence of existing mid-rise development on the site. Mitigation Measure HAZ-1 identifies a course of action with performance standards based on the results on the Phase II work subject to regulatory overview. Therefore, this mitigation does not represent deferred mitigation and is sufficient to avoid impacts related to the potential presence of hazardous materials. This mitigation is enforceable, since it requires implementation of the SGMP or equivalent report and must meet applicable environmental screening levels.

Compliance with regulations is appropriate mitigation when those regulations identify specific standards and criteria for minimizing environmental risk. In addition, MM HAZ-1 will be incorporated in the Mitigation Monitoring and Reporting Program for the Initial Study/Mitigated Negative Declaration EIR Addendum and project conditions of approval.

Therefore, preparation of a subsequent EIR is not required.

Comment A.13: VI. THE HOUSING ACCOUNTABILITY ACT WOULD NOT PRECLUDE

ADDITIONAL CEQA REVIEW

At the August 23, 2022 Planning Director’s Hearing, a representative of YIMBY (Yes In My Backyard) Law stated that the Project is subject to the Housing Accountability Act (“HAA”), and that YIMBY Law would legally challenge any action by the City to disapprove the Project.

Upholding Silicon Valley Residents’ Appeal and remanding the Project to City Staff to draft a Subsequent EIR would not be “disapproving” the Project within the meaning of the HAA. 84 Conducting additional and proper CEQA review prior to a final decision on the Project is a

79 14 CCR § 15126.4(a)(1)(B).
80 Preserve Wild Santee v. City of Santee (2012) 210 Cal.App.4th 260, 281. 81 Id.
82 Endangered Habitats League, Inc. v. County of Orange, (2005) 131 Cal.App.4th 777, 794. 83 See Cal. Clean Energy Comm. v. City of Woodland (2014) 225 Cal.App.4th 173, 194. 84 Gov. Code, § 65589.5, subd. (h)(6) (“Disapprove the housing development project” includes any instance in which a local agency does either of the following: (A) Votes on a proposed housing development project application and the application is disapproved, including any required land use approvals or entitlements necessary for the issuance of a building permit. (B) Fails to comply with the time periods specified in subdivision (a) of Section 65950. An extension of time pursuant to Article 5 (commencing with Section 65950) shall be deemed to be an extension of time pursuant to this paragraph.

Eterna Tower Mixed-Use Development 20 Response to Appeal reasonable, and good-faith exercise of the City’s discretion. As detailed below, the City would not be subject to liability under the HAA for directing Staff to prepare a Subsequent EIR.

The HAA does not relieve the City of its obligations to comply with CEQA. HAA Subdivision (e) provides that nothing “in this section be construed to relieve the local agency from making one or more of the findings required pursuant to [CEQA].”
85 The legislative report on SB 2011 states that
“[t]he bill provides an exception for…CEQA.” The legislature specifically carved out the CEQA to ensure that the HAA is not used to circumvent it.
86 As the court of appeal explained:
“[T]he Housing Accountability Act has no provision automatically approving EIRs if local action is not completed within a specific period. It [ ] was enacted after CEQA, but there is no indication that the legislature meant to modify or accelerate CEQA’s procedures. Again, the indication is to the contrary. The Housing Accountability Act expressly states that “Nothing in this section shall be construed… to relieve the local agency from making one or more of the findings required pursuant to Section 210118… or otherwise complying with the California Environmental Quality Act…” But it specifically pegs its applicability to the approval, denial or conditional approval of a “housing development project” which, as previously noted, can occur only after the EIR is certified.” 87 The HAA and subsequent caselaw upheld local agencies’ duty to comply with CEQA, even if the Project is subject to the HAA. Here, the City’s action to remand the Project to Staff to prepare a Subsequent EIR is required by CEQA and would not violate the HAA.

Response A.13:

The subject project was not streamlined under the Housing Accountability Act and therefore, a full CEQA analysis was prepared.

While it is true that upholding Silicon Valley Residents’ appeal would not prevent the preparation of a subsequent environmental document, as discussed above, the project would not require a subsequent environmental document because the EIR Addendum is the appropriate CEQA clearance.

Comment A.14: VII. CONCLUSION

For the reasons stated herein, we urge the City Council to vacate the Planning Director’s environmental clearance determination and approval of the Project, and to remand the Project to Staff

85 Gov. Code, § 65589.5, subd. (e).
86 California Renters Legal Advocacy and Education Fund et. al. v. City of Sonoma, Case No. SCV-262716, Order After Hearing, https://carlaef.org/legal-case/149-fourth-st-sonoma/documents/orderafter-hearing/ (Superior Court of California, County of Sonoma).
87 Schellinger Brothers v. City of Sebastopol (2009) 179 Cal.App.4th 1245, 1262.

Eterna Tower Mixed-Use Development 21 Response to Appeal to prepare a revised environmental analysis in a Subsequent EIR as required by CEQA. The new analysis must identify and implement all feasible mitigation measures available to reduce the Project’s potentially significant site-specific impacts to less than significant levels before the City reconsiders approving the Project.

Thank you for your attention to these comments. Please include them in the City’s record of proceedings for the Project.

Response A.14: This comment indicates that the EIR Addendum is inadequate and suggests that a Subsequent EIR is required. As presented in the responses to this letter, the assumptions and conclusions made in the EIR Addendum are accurate, adequate, and supported by substantial evidence. None of the claims presented in this comment letter provide additional substantial evidence that the project would result a new significant environmental impact or a substantial increase in the severity of an environmental impact than determined in the Addendum Therefore, the City has determined that preparation of a Subsequent EIR is not warranted. This appeal letter and responses will be included in the City’s record of proceedings.

RESPONSES TO LETTER A ATTACHMENT BY CLARK & ASSOCIATED
ENVIRONMENTAL CONSULTING, INC.

Comment A.1-1: The City’s Air Quality Analysis Fails To Consider The Impact Of Adding Additional Diesel Particulate Matter (DPM) On The Already Impacted Census Tract.

Response A.1-1: The air quality assessment evaluated air quality impacts associated with the Project, including an extensive analysis of diesel particulate emissions and addressed the influence of cumulative sources of toxic air contaminants that include roadways, stationary sources, and other construction projects within 1,000 feet of the Project site. No further analysis is warranted.

Note that BAAQMD uses CalEnviroScreen 4.0 to identify overburdened communities, which are those that have an overall pollution burden that exceeds the 70th percentile. This Project site has an overall pollution burden that is at the 64th percentile and is not considered by BAAQMD as an overburdened community. The description of “this already burdened community” is incorrect.

Comment A.1-2: Air Quality Mitigation Measure (MM) 1 Fails to Require the Use of Tier 4 Final Technology for Off-Road Sources of Diesel Exhaust On-Site.

Response A.1-2: See Responses to A.11, A.12, and A.13 above. The use of Tier 4 equipment, either Tier 4 Final or Tier 4 Interim, is likely the easiest method to meet mitigation measure requirements. The air quality analysis reflects reality, in crafting the mitigation language, that there may be a rare circumstance that Tier 4 equipment is not available. In that case, Tier 3 equipment that are equipped with CARB Level 3 verifiable diesel emission control devices could be used. When the commenter describes the effectiveness of Tier 3 equipment, they neglect to recognize that the engines would have to be equipped with CARB Level 3 verifiable diesel emission control devices. According to the CalEEMod model, these devices reduce diesel particulate matter emissions by 85 percent.

Diesel particulate matter emissions from Tier 3 engines equipped with CARB Level 3

Eterna Tower Mixed-Use Development 22 Response to Appeal verifiable diesel emission control devices would be similar to those associated with Tier 4 engines. Note the main difference between Tier 4 interim and Tier 4 final standards is that Tier 4 final includes the requirements for particulate matter (including diesel particulate matter) and includes controls to further reduce NOx. Mitigated emissions, based on Tier 4 interim emissions, result in cancer risk well below the threshold. Modeling based on use of Tier 4 Final or Tier 3 engines with CARB Level 3 verifiable diesel emission control devices would not substantially change this conclusion nor the significance finding. The commenter does not provide any evidence to the contrary. Therefore, no further analysis is necessary.

Comment A.1-3: The City’s CalEEMod Analysis of Emissions from The Back Up Generator (BUG) On-Site Must Include the Testing and Non-Testing (Operational) Impacts of the BUG.

Response A.1-3: See Response A.14 above. Note that the commenter claims that there will be substantially more hours of generator operation than 50 hours per year, averaged over 28 years, based on the selection of certain events that occurred outside of this air basin back in 2019 when rural and suburban portions of the State were subject to PSPS events and then a separate extreme heat event that occurred in a different year of 2021. In the extreme heat event of 2021, operators were only allowed to operate their equipment, but most did not as long as there was electricity available. The backup generator’s purpose is to provide electrical power in the event of a power outage and not serve as an alternative power source. Left out of the commenters discussion is the high cost of diesel fuel to operate this equipment, resulting in a much greater expense for electrical power to the site. There is no specific evidence provided that the assumptions of 50 hours per year of operation is an underestimate.

Furthermore, there is no evidence provided that if the hours were greater than 50 hours that emissions would exceed thresholds as the results of emissions modeling show that total project criteria pollutant emissions are well below thresholds and the mitigated cancer risk that includes generator operation over 28 years is well below thresholds. No further analysis is necessary.

San Jose City CouncilDecember 13, 2022

San Jose City Council
December 13, 2022