Tag Archives: EIR

Courts Rule Against McKinley Village on Traffic—Action Needed by Neighborhood

Slide5The neighborhood has an opportunity to redress McKinley Village traffic concerns. Please read the below message and documents and reach out to city officials.

Friends and Neighbors––
We already know that more and more traffic from more and more development will continue to flood our neighborhood streets.
Traffic––like water––will flow wherever it can go.
California’s highest courts have ruled on traffic in favor of East Sacramento Partnerships for a Livable City (ESPLC) in its legal challenge to the City and the developers of the McKinley Village Project.
Essentially, the landmark ruling means that FAILING TRAFFIC considered OK under the City’s general plan alone is NOT OK!
             “. . . The general plan alone does not constitute substantial evidence that there is no significant impact. . . .”
But, before the Court’s ruling could be implemented, the City and the developers first tried blocking its publication. 
Failing that, they now are attempting to rush through a “Revised Draft EIR for McKinley Village,” which does NOT COMPLY with either state law under the California Environmental Quality Act (CEQA), or the published ruling of the Court of Appeal of the State of California––upheld by the California State Supreme Court.
Join neighbors in support of ACTION before 4:00 PM this FRIDAY, MARCH 3, 2017.
     • PLEASE READ the attached files.
     • VOICE YOUR CONCERNS to the City Council.
     • SUBMIT A LETTER requiring the City to comply with the Court of Appeal’s ruling.
                
     • DELIVER to:  Dana Mahaffey, Associate Planner
                              City of Sacramento, Community Development Department
                              Environmental Planning Services
                              300 Richards Boulevard, Third Floor
                              Sacramento, CA  95811
                              E-MAIL: dmahaffey@cityofsacramento.org
     • DEADLINE:   March 3, 2017 at 4:00 PM.
 
Following is a detailed letter explaining the case.
A chart containing key dates and events in McKinley Village litigation, including requests for depublication, along with two of ESPLC’s representative Letters filed in the California State Supreme Court is forthcoming.

February 26, 2017

Dear Friends and Neighbors,

On November 7, 2016, the Court of Appeal of the State of California for the Third Appellate District, ruled in favor of East Sacramento Partnerships for a Livable City (ESPLC) in its lawsuit challenging the City of Sacramento and the developers of the McKinley Village project in connection with certain traffic impacts.  The Court of Appeal ruled that the City of Sacramento’s failure to properly analyze these traffic impacts violated the California Environmental Quality Act (CEQA).

The Court of Appeal has directed the Superior Court to issue an Order to the City requiring that it:

  • decertify the existing Environmental Impact Report (EIR);
  • correct deficiencies in the existing EIR;
  • recirculate a CEQA-compliant EIR before recertification.

It appears that the City is attempting to circumvent the Court of Appeal’s ruling by adopting a “Revised Draft EIR for McKinley Village” before the Superior Court can issue the Order.  The Revised EIR does not contain the traffic analysis required by the Court of Appeal.

We encourage residents throughout the City who are concerned about unmitigated traffic from intensifying development flooding our neighborhoods to submit a letter or email to the City urging the City to reject the inadequate Revised EIR, and requiring that the City comply with the Court of Appeals decision.  Please see the end of this update for guidelines on communicating your concerns to the City, on the record, before the March 3rd deadline.

Court of Appeals Ruling on Traffic

The Court of Appeal’s decision was certified for publication, meaning that it can be cited in other cases as legal precedent.  Only about 10% of California Court of Appeal decisions are published.  Although the relevant traffic-related portion of the decision addresses a narrow issue, the ruling has implications far beyond the McKinley Village Project.  As written:

“. . . The general plan alone does not constitute substantial evidence that there is

no significant impact. . . .

. . . a threshold of significance cannot be applied in a way that would foreclose

the consideration of other substantial evidence tending to show the environmental

effect to which the threshold relates might be significant. . . .”

The Court of Appeal went on to prescribe the remedy:

“Because the EIR fails to explain or provide substantial evidence to support the finding of no significant traffic impact at these intersections, we must reverse the trial court’s denial of ESPLC’s petition for a writ of mandate and remand [return] the case for issuance of a writ directing the City to set aside its certification of the final EIR and to take the action necessary to bring the transportation and circulation section of the EIR into compliance with CEQA. . . .

. . . The City need only correct the deficiency in the EIR that we have just described before considering recertification of the EIR.”  (Emphasis added.)

The developer of the project first called the Appellate Court’s ruling a minor technicality, easily remedied.  Then, together with the City, the developer petitioned the Appellate Court for a rehearing on this issue.

The City’s request for rehearing was denied.  However, before the Appellate Court could deliver its decision to the Sacramento Superior Court (which is responsible for issuing the order directly to the City), the City and the McKinley Village developer launched a statewide campaign to delay issuance of the order––and to diminish the significance of the Court of Appeal decision––by petitioning the California State Supreme Court to “depublish” the Court of Appeal decision.  The City and legal counsel for McKinley Village were among the first groups of developers, state and local agencies, and building industry associations pressing for depublication.

After receiving multiple requests, the Supreme Court asked to see the record of the Appellate Court hearing, including the Administrative Record, which spans tens of thousands of pages.  In opposition to these depublication requests, ESPLC pointed out that the rule being advocated by the groups seeking depublication would:

“. . . enable California cities to circumvent CEQA by adopting LOS F (i.e., “failing”) traffic conditions as thresholds of significance in their general plans, and to thereby avoid any responsibility for analyzing a project’s impacts on traffic, to avoid requiring feasible mitigation measures to address such impacts, or to avoid adopting statements of overriding considerations where mitigation is infeasible.  Such a rule would undermine the fundamental goals of CEQA.”

After two months evaluating more than a dozen letters, the California Supreme Court denied all of the requests for depublication.  On its own motion, it declined to review the matter and declared that the opinion of the Court of Appeal “is now final.”

The Court of Appeal’s published opinion on traffic in favor of ESPLC is now the law of the land.

Revised Draft EIR 

During the months taken by the Supreme Court to reach its decision, the opinion of the Court of Appeal could not be delivered to the Superior Court for implementation.

During the delay, the City of Sacramento issued its “Revised Draft EIR for McKinley Village.”  Yet, the Revised EIR contains no new traffic analysis.  The lack of analysis in the Revised EIR does not address the Court’s direction to properly analyze traffic impacts, and does not reduce those impacts in any way in our neighborhoods and in the central core.

ESPLC believes that the City’s latest action violates not only the letter and spirit of CEQA, but also the express directions given by the Court of Appeal in its published decision.

The Court of Appeal’s decision––as confirmed by the Supreme Court––is significant and, quite literally, precedent setting.  It requires cities and developers state-wide to respect the health and well-being of the People by properly evaluating the environmental impacts of new developments before they are approved.  The decision confirms that which should have been obvious: the developers––and the government at the behest of the developers––cannot paper over significant environmental impacts by simply declaring those impacts to be “acceptable” without proper study and disclosure to the people who will be impacted.  Here, however, the decision will be meaningless if the City is allowed to circumvent the Court of Appeal’s ruling before it takes effect.  To avoid that, we need your help.

Voice your concerns to the City Council!

ESPLC encourages all who are impacted negatively in any way by unmitigated traffic to voice your concerns to the City Council in a letter or e-mail, which must be received by the City on or before 

March 3, 2017.

Letters and e-mails should be focused on the issues currently before the City Council which conflict with the Court of Appeal’s decision.  Specifically:

  • Express opposition to the “Revised EIR for the McKinley Village Project,” noting that it does not contain a new traffic analysis, and no new mitigation that would lessen the significant traffic impacts of the project on the area neighborhoods and roadways.
  • Significant traffic impacts continue to be unmitigated.  Describe how you, your family, and neighbors are experiencing traffic issues even now, during construction of the Village project.
  • Urge the City to comply with the decision of the Court of Appeal in the case of East Sacramento Partnerships for a Livable City (ESPLC) v. City of Sacramento, et al. by decertifying the current EIR, conducting a full, independent traffic analysis, and recirculating the EIR for additional public comment.
  • Failure to follow the law will lead to further unnecessary taxpayer expense if the City must again be compelled to comply with state laws governing the environment.

Deadline:March 3, 2017 at 4:00 PM

Deliver Letter to:Dana Mahaffey, Associate Planner

City of Sacramento, Community Development Department

Environmental Planning Services

300 Richards Boulevard, Third Floor

Sacramento, CA 95811

-or-

E-mail Letter to:dmahaffey@cityofsacramento.org

 

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East Sacramento Preservation Essayist, Pat Lynch, Considers the DEIR

The EIR Gospel

by Pat Lynch
 
The EIR. It’s big as a Bible and every bit as mythical. It stands for Environmental
Impact Report (though some think it means Errors Implanted Relentlessly) and is
commissioned by developers to help them sail through a largely ceremonial city
process that purports to assess the worth of their projects.

The first stage in the EIR process is the NOP (Notice of Preparation). The NOP is
supposed to give you a chance to raise concerns that will be routinely dismissed by
the developer and his acolytes. Add an E to NOP and you have NOPE which is the
answer you will get to your requests and allegations.

For example, some of us asked the developer of the proposed McKinley Village (McVillage) to add two way car access to the Alhambra Street bike/pedestrian exit that would relieve our streets of traffic invasion. “Not economically feasible” he said. Later, after many more voices were added to this request, he changed his answer to “not technically feasible.” Aha. What before was too expensive had now become physically impossible. Whosoever seriously believes this must change the N in NOPE to a D (DOPE) because lo, you have become one.

After this comes the DEIR, or Draft EIR, more aptly called the DAFT EIR. Anyway,
the current McVillage Daft EIR is riddled with illogic and absurdities but quoted with
stubborn reverence as Truth. For the developer, it’s holy writ. But let’s look at one
of the proclamations they expect us to accept by faith alone. It’s that a “Traffic
Study” has determined that 3, 500 more cars a day invading quiet East Sacramento
streets will be of “insignificant impact.” But this traffic “study” is a driver-centric
sham that counts only the number of times a driver pauses. It doesn’t ‘study’ or
even consider the impact auto traffic has on residents—exhaust pollution,
pedestrian safety risks, and the inevitable erosion of neighborhood character.

Who composes these EIRs that smooth the way for injurious projects? In the
present case it is Dudek, a consulting firm hired by the developer. Dudek says it
stays “focused on moving projects methodically through planning, analysis,
development and implementation.” Pro-project, paid by the developer, avowedly on
his side, these hired high priests write the EIR. How, in view of this, can any sane
person regard that document as a tome of objectivity? But people do. Naturally the
developer quotes it chapter and verse. Some City Council members say they believe
it. Other people believe it because they want to believe it. Never mind that it is a
preposterous concoction of falsehoods, believers have faith so as to move
mountains, or blast holes in your levee and funnel traffic down your street.

In keeping with a ritualistic pretense at democracy we are permitted to comment
on the Daft EIR and our objections and other heresies will be noted in the sacred
text of the final document. But noted does not mean ameliorated. Most of our
comments will be dismissed with technical verbiage employed to disguise magical
thinking. And what of those neighbors who object to the process itself, to its
stacked-deck unfairness and slippery relationship with truth—will they be blessed
with more balanced and accurate procedures in the future? No. Nor will their
elected representatives heed them and mend the process. Why? Because, behold,
neighbors giveth not great sums to their representatives. And you have only to look
at the public record to see that developers make donations of ‘significant impact’ to
city politicians.

None of this is news, of course. The EIR is largely a work of fiction, its traffic
study a creepy fraud, its authors for hire. How can neighbors defend against such a
set-up? In the case of McVillage, ECOS (the Environmental Council of Sacramento) and
Physicians for Social Responsibility have joined multiple neighborhood and
environmental groups to oppose the conclusions of the Daft EIR. Will that matter?
Will the developer and his EIR employees accommodate the wishes of those who
live here?

Imagine having truly objective and trustworthy analysts. Monks, say.
Incorruptible, environmentally educated Buddhist sages from a remote monastery,
paid not by the developer, or the neighbors, or the politicians, but from a purity
fund to which all contribute an identical amount? Now that might produce a study
we could respect. You can look for this when they plug in the snow-blowers in Hell.
Meanwhile go to the McVillage site itself, that bowl of land between the railroad and
freeway. Look around. Imagine the place crammed with giant suburban houses with
at least two cars per house. Visualize those cars charging down your street. Every
day. Every night. You can see the snarling nightmare now. But wait. The EIR says it’s
“insignificant.”

Ultimately everything comes to this: what do you believe: the EIR or your lying
eyes?

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