Eric Larsen v. City of Albany

On August 20, 2012, Eric Larsen, a resident of Albany and member of Keep Albany Local, the Albany Farm Alliance and Occupy the Farm*, filed a lawsuit against the City of Albany seeking the City to vacate its certification of the Environmental Impact Report and approval of the project and other relief.  You may view Mr. Larsen’s lawsuit against the City HERE.

The suit – a petition for a writ of mandate (which seeks a court order to a government agency to follow the law by correcting its prior actions or ceasing illegal acts) – does not seek monetary damages.

In an effort to facilitate community transparency, below are the reasons that compelled Mr. Larsen to file a lawsuit against the City of Albany:

Why bring suit over approval of the UC Mixed-use EIR?

The Project as approved by the City (57,000 sq.ft grocery with additional 28,00 sq.ft. retail and 175 unit senior assisted living facility), has significant environmental impacts including increased traffic and inherent traffic hazards (the EIR estimates an additional 5000 trips per day), and increase fossil fuel consumption through both vehicular use, increased energy consumption, increase in solid waste generation and increase in non-renewable resource consumption, as well as a reduction in vegetation.

It also does not consider impacts on the neighboring agricultural land; land that community advocates have long sought protection for and access to.

The Environmentally Superior Alternative

The Draft EIR presented three  (3) alternatives, one of which was to build the project within the existing San Pablo Commercial zone (within 100 ft. of San Pablo Ave.). This alternative resulted in a smaller (15,000 sq.ft.) grocery store and smaller housing (70 units), but met the Project Goals except for outdoor seating for a café, as stated in the findings of the EIR. Yet, in the City’s Findings of Overriding Considerations they state that “the Alternative does not meet project goals” and in fact should not have been considered.

Significant increases in traffic, especially in an already congested area, is inherently hazardous regardless of CalTrans traffic mitigations. I am asking the City for an explanation of why they have forgone the environmentally superior alternative, and in light of the alternative presented, I am fighting for development that caters to local and non-motorized traffic, not simply accepting the impacts of more vehicular traffic and pleading for safety mitigations.

Both a significantly larger store and more dwelling units (one in which will be a closed window facility) will have a much higher energy demand in heating and cooling, as well as significant solid waste generation. It is not clear what businesses would be going into the 28,000 sq. ft. of retail space, but it is likely to be a fast food and carry-out business with additional solid waste generation, which in the landfill leads to more GHG generation; and this is to speak nothing of increased motor vehicle GHG generation. I am asking the City why they have forgone the environmentally superior alternative, and am championing the environmentally superior alternative.

The following is excerpted from the Draft EIR Alternatives:

CHAPTER 5

B. EXISTING ZONING ALTERNATIVE

…This alternative would meet most of the project objectives, but would not incorporate outdoor seating into the site design. Additionally, this alternative would provide significantly less retail and grocery square footage and fewer dwelling units.

2. Analysis of the Existing Zoning Alternative

…this alternative would generate about 70 percent fewer trips than the proposed project during the weekday AM and PM and Saturday peak hours. The alternative would most likely not cause as many significant impacts as the proposed project.

c. Global Climate Change. Given its reduced size, this alternative would reduce greenhouse gas emissions of the project…Global climate change impacts under this alternative would be reduced compared to the proposed project.

Yet, the City’s Statement of Overriding Considerations justifies foregoing the alternative:

Finding: This alternative does not meet the project objectives. It would provide significantly less retail and grocery square footage, and fewer dwelling units. This alternative does not fulfill the basic definition of a project objective as contained in Section 15126.6(a) of the CEQA Guidelines which provides that alternatives should be examined “which would feasibly attain most of the basic objectives of the proposed project.”

However, the project objectives from the EIR, listed below, nowhere state nor describe a minimum size required for the project nor minimum dwelling units, let alone minimum revenue generation. Yet, the findings had that the “alternative does not meet the project objectives”:

CHAPTER 3C. PROJECT OBJECTIVES

The following are objectives of the proposed project:

• Locate a mixed-use project on the San Pablo Avenue corridor within Block B of the project site.

• Build a grocery store within the San Pablo Avenue frontage of University Village located within Block A of the project site.

• Offer retail space and outdoor seating as a local amenity designed to connect with the surroundings and serve local residents and new residents of the project.

• Facilitate pedestrian/bicycle movement across San Pablo Avenue.

• Improve the visual quality of the site.

• Provide senior housing.

• Within the project site, provide a pedestrian/bicycle path along Codornices Creek.

The University of California’s objectives are detailed in the University Village Master Plan.

The Environmentally Superior Alternative, a 15,000 sq. ft store and 70 unit senior assisted living center do meet these project goals and significantly reduce the impact of the Project.

Now as to the purpose of the EIR, it is derived from CEQA as follows:

15002. General Concepts

(a) Basic Purposes of CEQA. The basic purposes of CEQA are to:

(1) Inform governmental decision-makers and the public about the potential, significant environmental effects of proposed activities.

(2) Identify the ways that environmental damage can be avoided or significantly reduced.

(3) Prevent significant, avoidable damage to the environment by requiring changes in projects through the use of alternatives or mitigation measures when the governmental agency finds the changes to be feasible.

(4) Disclose to the public the reasons why a governmental agency approved the project in the manner the agency chose if significant environmental effects are involved.

The City Council has failed in the Purposes of CEQA #3 and #4 above with their certification of the EIR and their approval of the Project without the changes to the Project that would have been consistent with the Existing Zoning Alternative. They have failed in their duty to prevent significant avoidable damage to the environment, and the City has not provided adequate justification for approval of the project. These are very substantial elements and I believe many citizens of Albany, as advocates for  active transportation and GHG reduction, should be demanding that the City first prevent significant environmental damage and second, demand a better explanation of why the City may allow it.

Consideration of Prime Agricultural Resources

The EIR did not consider potential impacts on Prime Agricultural land because it was not mapped by Farmland Mapping and Monitoring Program:

VI. CEQA-REQUIRED ASSESSMENT CONCLUSIONS:
A. EFFECTS FOUND NOT TO BE SIGNIFICANT
b. Agricultural Resources. The project site is not designated by the Farmland Mapping and Monitoring Program as prime farmland, unique farmland, or farmland of statewide importance. The project site currently consists of vacant parcels and vacant buildings/greenhouses that were once used for agricultural research. There are approximately 7 acres (to the north of the project area) that are used by the College of Natural Resources as an academic reserve for agricultural experiments. Farmland areas of the Gill Tract have been in use for campus research and are not considered prime farmland. Decisions by the University of California as to future use of the Gill Tract would not be affected by implementation of the proposed project. Impacts to agricultural resources would be less than significant and are not further analyzed in this EIR.

This is not an adequate assessment. The 7.5 acres abutting the north side of the project area is not mapped by the FMMP because it is less than 10 acres; however, it is comprised cultivated agricultural land that is classified as Class I Agricultural Soil by the USDA Natural Resource Conservation Service, which meets the CEQA definition of Prime Agricultural Land. This could be considered an oversight, except that for over 15 years citizen have been petitioning the UC and the City of Albany for preservation and protection of the agricultural resource as well as access to it.

Construction and building facilities of the scale as proposed in the Project will leave little undeveloped open space left on the northern side of the Gill Tract; area that currently hosts the Albany Little League (ALL) ball fields and that is slated for more housing development by the UC’s 2004 Master Plan. The UC has also guaranteed the ALL ball fields for the next 10 years. All of this puts great development pressure on the agricultural land, which should be taken into account in the EIR.

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If you are a citizen of Albany, find the above statement by Mr. Larsen compelling and wish to join him in this lawsuit against the City of Albany, please contact his attorney, Dan Siegel at: DanSiegel@siegelyee.com.

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* Mr. Larsen was one of the original 14 named defendants in the lawsuit filed by the University of California against Occupy the Farm during their occupation of the Gill Tract between April and May, 2012.

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