Joseph Fruen_RedactedFrom: Joseph Fruen ]
Sent: Monday, March 12,2018 1:05 PM
To: City of Cupertino Planning Dept. <planning@cupertino.org>
Cc: Grace Schmidt <graces@cupertino.org>; City Clerk <CityClerk@cupertino.org>
Subject: For public comment re: EIR scope and the 2/22/2018 EIR scoping meeting
To: Planning Staff:
At the February 22, 2018 EIR scoping meeting and in subsequent public discussion, a
number of individuals have raised the question of whether an EIR project alternative
may legally go beyond what the Cupertino General Plan permits. Please accept this
comment in part as a response to these concerns.
As a preliminary matter, even cursory recourse to the CEQA Guidelines reveals that
there is "no ironclad rule governing the nature or scope of the alternatives to be
discussed other than the rule of reason." Cal. Code Regs., tit. 14, § 15126.6(a). While the
precise effect of CEQA Guidelines remains unclear, our courts, at a minimum, have
historically accorded them great weight. Laurel Heights Improvement Ass'n v. Regents
of the Univ. of California, 47 Ca1.3d 376, 391 n.2 (1988). Furthermore, in interpreting EIR
scoping requirements, our Supreme Court has directly answered the question of
whether an EIR may consider a project alternative outside the bounds of a
municipality's general plan: "an EIR may properly consider an inconsistent land -use
designation in the general plan ... in assessing the feasibility of a project alternative"
and "in some circumstances, an EIR may consider alternatives requiring a site-specific
amendment of the general plan." Citizens of Goleta Valley v. Bd. of Supervisors of Santa
Barbara County, 52 Cal.3d 553, 573 (1990) (emphasis in original). Simply put, public
claims that EIR plan alternatives for the Vallco Specific Plan that breach the bounds of
Cupertino's General Plan are not, for that reason alone, illegal or cause for invalidation
of the EIR. In accordance with Citizens of Goleta Valley, Cupertino may study plan
alternatives outside the bounds of the city's current General Plan as part of the Vallco
Specific Plan EIR--the EIR plan alternatives need only satisfy Guideline 15126.6(a)'s rule
of reason. Citizens of Goleta Valley, 52 Ca1.3d at 576.
Conversely, Laurel Heights, supra, may actually require that the city study a maximum
housing buildout plan alternative consistent with a potential project application under
SB 35 and AB 1515 at the Vallco site as one of the EIR plan alternatives in order for the
EIR to be considered substantial evidence. At a minimum, any agency action on an EIR
must rely on substantial evidence. In order for an EIR and evidence of mitigation to be
substantial, a project EIR must consider the cumulative effects of a project. Cal. Code
Regs., tit. 14, § 15130; Laurel Heights, 47 Ca1.3d at 394. A project's "cumulative effects"
include past, present and probable future projects, even if those projects would be
outside the agency's jurisdictional control. Cal. Code Regs., tit. 14, § 15130; Laurel
Heights 47 Cal.3d at 394. As of January 31, 2018, Cupertino is subject to certain
streamlining provisions of SB 35 because of the city's failure to permit and build
sufficient quantities of affordable housing to satisfy its Regional Housing Need
Allocation (RHNA) requirements. That status will remain in place for a number of years
until the next RHNA assessment. As such, it would be reasonable to foresee a probable
future project under SB 35 being proposed for the Vallco site. Inclusion of a maximum
housing buildout at Vallco consistent with the requirements of SB 35 and AB 1515 as
one of the plan alternatives in the Vallco Specific Plan EIR would therefore satisfy
analysis of cumulative effects of the project under consideration and help ensure that
any EIR ultimately certified constitutes substantial evidence under the Guidelines.
In summary, public comments to the effect that study of EIR plan alternatives outside
the bounds of Cupertino's General Plan would be illegal are an incorrect statement of
law. In addition, the city should study as one of the EIR plan alternatives a maximum
housing buildout consistent with a probable application under SB 35 and AB 1515 at the
Vallco site in order to insulate the city's EIR process against legal attack.
Many thanks for your consideration,
J.R. Fruen, Esq.