December 4, 2006

Marcia Raines, City Manager
City of Half Moon Bay
501 Main Street<
Half Moon Bay, CA 94019

SUBJECT: COMMENTS ON THE DRAFT ENVIRONMENTAL IMPACT REPORT (DEIR) FOR HIGHWAY 1/TERRACE AVENUE SIGNALIZATION AND ROADWAY IMPROVEMENTS (THE 'PROJECT')

Dear Ms. Raines:

Coastside Community First is dedicated to educating ourselves and the community about important issues, and offers the following analysis in the spirit of furthering the City's best long-term interests. Our directors, none of whom has a personal interest in the proposed project, invite discussion of this subject with Councilmembers, Planning Commissioners, and Staff.

Please include CCF's comments on the project's DEIR within the public record. We will first examine the DEIR's treatment of the proposed project (pp. 1-8); second, the DEIR's treatment of project alternatives (pp. 8-18).

PROJECT

1. REMOVAL AND FILL OF WETLANDS

The DEIR states in its executive summary that "The project would cause removal and fill of wetlands that could be considered a significant impact under the California Coastal Act or the Half Moon Bay Local Coastal Program." (p. ES-8) This restates verbatim the finding in the Biological Resources section of the DEIR's Environmental Impact Analyses, which adds:

"These habitats are protected under the Half Moon Bay Local Coastal Program.  Fill or destruction of habitat protected by the Half Moon Bay Local Coastal Program would be considered a significant impact. 

"The California Coastal Act also protects seasonal wetlands. Any fill, removal, or adverse impacts to wetlands would be considered a significant impact. Mitigation measures are not available under the California Coastal Act for the destruction of wetlands." (p. 3-49)

It should be observed that the DEIR's repeated statements concerning wetland removal and fill are unequivocal: they do not state a possibility that wetlands 'might' or 'could' be removed and filled, but that as a finding, wetlands would be removed and filled by the proposed project.

Where are the seasonal wetlands?

The DEIR finds that "Seasonal wetlands are located on the Beachwood site east of Highway 1 and in the median between Highway 1 and the unnamed frontage road." (p. 3-48) A satellite photo (p. 3-25) delineates (in speckled blue) the seasonal wetlands within the project area. Although seasonal wetlands are not delineated adjacent to the Terrace/Highway 1 intersection, north from that point they are found on one or both sides of almost all of the highway section proposed for widening under the project. 

Can the wetlands be removed and filled for the proposed project?

The DEIR finds that "The City's LCP prohibits the construction of a roadway that would require the grading or fill of wetlands (LCP Sections 3-3 and 3-4)." (pp. 5-5 to 5-6) Half Moon Bay's LCP Section 3-3(a) states:

"Prohibit any land use and/or development which would have significant adverse impacts on sensitive habitat areas."

LCP Section 3-4(a) states:

"Permit only resource-dependent or other uses which will not have a significant adverse impact in sensitive habitats."

Two points should be noted here. First, that LCP Section 3-1, in its "Definition of Sensitive Habitats," states: "Such areas include…wetlands…." Second, as the DEIR explains (quoted above), removal and fill of wetlands "would be considered a significant impact" under both the City's LCP and the Coastal Act.

A further complication of the wetlands issue is also mentioned by the DEIR: "In addition, to comply with the LCP (Section 3-11(c)), 100-foot buffers between the road and wetland features would need to be maintained." (p. 5-6) The LCP section referenced by the DEIR reads: "Along lakes, ponds, and other wet areas, extend buffer zones 100 feet from the high water point…." The DEIR's satellite photo (p. 3-25) demonstrates that extensive seasonal wetlands would necessarily fall within 100 feet of the proposed project boundary.

Aren't there circumstances under which road building or widening could be permitted to remove and fill wetlands? 

It is undeniable that some road construction in the coastal zone has been permitted to remove and fill wetlands. The north portal of the tunnel at Devil's Slide, with its bridge across Shamrock Ranch connecting to San Pedro Grade, is a prominent (and recent) local example. The proposed project examined by the DEIR, however, does not possess characteristics that might exempt it from the prohibition against wetland destruction. The DEIR (p. 5-6) quotes the precedent-setting Bolsa Chica decision, which gives circumstances under which wetland fill could occur: "roadway expansions are permitted only when no other alternative exists and the expansion is necessary to maintain existing traffic capacity." (Bolsa Chica Land Trust et al v. Superior Court, 71 Cal. App. 4^th 517 (1999))

The DEIR does not represent that the proposed project is needed to "maintain existing traffic capacity." In fact, the Coastal Commission rejected the same project in 2001 with a finding that it would worsen existing traffic conditions. Despite the proposed project's stated objective to "facilitate the safe and efficient movement of vehicles, bicyclists, and pedestrians at the Highway 1 and Terrace Avenue intersection"(p. ES-2), the purpose of the project is revealed in the first sentence of the DEIR's second paragraph: "The proposed project would allow access between Highway 1 and the Pacific Ridge residential development project site…." (p. ES-1) That is, the project is needed to facilitate new residential development, whose negative traffic impacts the project would purportedly mitigate.

There are other circumstances in which roadway projects may be allowed to fill wetlands that should be examined for their relevance to the proposed project. As Chris Kern, Coastal Commission's Coastal Program Manager for the North Central Coast District, explained in a June 15, 2006 letter to Coastside Community First, the Devil's Slide tunnel was permitted to fill wetlands because there was an unavoidable conflict between Coastal Act policies in considering the tunnel project:

"The Coastal Act provides that development may only be permitted where the development may be undertaken in conformity with all coastal resource, public access, and public recreation protection policies of the Act and/or an applicable local coastal program.  The 'conflict resolution process' provided by Coastal Act Section 30007.5 may only be invoked where an unavoidable conflict exists between competing Coastal Act policies…The Commission is required to resolve such conflicts in the manner that is most protective of significant coastal resources.  The conflict resolution process is not applicable in cases where a proposed development is simply inconsistent with the Coastal Act absent a conflict between competing Coastal Act policies.  In these cases, the development is simply prohibited.

"In the case of the Devil's Slide Tunnel project, the Commission determined that construction of the tunnel was necessary to protect public access to the coast but that the project could not be undertaken without filling wetlands.  Thus, the Commission found that the tunnel project presented an unavoidable conflict between Coastal Act policies that on the one hand promote public access and on the other prohibit wetland fill...Based on these findings, the Commission determined that the conflict presented by the tunnel project between Coastal Act public access policies and the wetland fill prohibition should be resolved in favor of maintaining public access to the coast."

Unlike the Devil's Slide tunnel, the proposed project has not been portrayed, either through the DEIR or elsewhere, as supporting other Coastal Act policies such that their consideration would override the prohibition against wetland destruction. As the DEIR explains, the proposed project's removal and fill of wetlands is prohibited by both the City's LCP and the Coastal Act; would be considered by those policies a "significant impact"; is not mitigable under the Coastal Act; is intended to accommodate future residential development (not to "maintain existing traffic capacity"); and is not outweighed by the need to support a conflicting Coastal Act policy.

Can the project be modified to avoid removal and fill of wetlands?

The DEIR proposes the following Mitigation Measure 3.5-9, which it avers "would reduce this potential impact [removal and fill of wetlands] to a less than significant level":

"Prior to project construction a final determination of the presence of wetlands that may be affected by the project shall be made by the U. S. Army Corps of Engineers. If the Army Corps declines taking jurisdiction over wetlands that would be affected by the project, then no further mitigation would be necessary. Conversely, if there is a determination that the project could affect jurisdictional wetlands (under either the U.S. Army Corps or California Coastal Commission definition), the project shall be modified to avoid any impact to wetlands." (pp. 3-49 to 3-50)

Since neither MHA Environmental Consulting, Inc., authors of the DEIR, nor other experts believe there is any significant likelihood that a federal agency would assert jurisdiction over the project's wetlands, the first two sentences of the proposed mitigation measure will be passed over. The focus should be on the third sentence, which elicits two questions. First, would the Commission agree that the delineated areas on the DEIR's map are in fact seasonal wetlands? And second, if so, how could the project be modified to avoid the wetlands?

On the first question, there can be little doubt that the Commission, as well as the City, have no choice but to recognize the wetlands on the Beachwood site because last year they successfully defended in state appellate court the definition and protection of the same wetlands against the Beachwood owners. The state Supreme Court declined to review the appellate ruling, exhausting further judicial appeal of the July 2005 decision affirming the City/Commission's wetlands determination. In addition, the same parties are currently litigating a federal takings case in which the existence of the wetlands is stipulated to the court. It would jeopardize the City and Commission's legal position to at this late date deny the existence of the Beachwood wetlands, or to allow the proposed project to remove, fill, or develop within 100 feet of the wetlands.

On the second question, the DEIR briefly discusses only one way in which the project could be modified to avoid any impact on wetlands: signalize Terrace Avenue without widening Highway 1. Serious problems confront this modification, however, as the DEIR recognizes:

"A traffic analysis of this alternative has not been conducted. It would appear from observation that the introduction of a left-turn lane on northbound Highway 1 at Terrace Avenue without additional widening of Highway 1 would constrain the existing lane drop. This could potentially lead to increased congestion and increased accident potential, due to the need to merge two lanes into one in a distance less than currently exists." (p. 5-8)

A new DEIR would be required to analyze this modification for compliance with CEQA, but it is so problematic that new studies would more than likely be a waste of time. As this DEIR readily surmises, a stoplight without road widening would shorten the existing lane drop, increasing traffic accidents and congestion. To avoid such problems, CalTrans requires road widenings for hundreds of feet before similar highway stoplights, which the one proposed mitigation cited by the DEIR could not accomplish. The unavoidable conclusion, therefore, is that Mitigation Measure 3.5-9 is without substance, because the DEIR does not identify any feasible project modifications that would avoid wetlands intrusion. Oddly, despite the DEIR's admissions on page 5-8, that signalization without road widening could "lead to increased congestion and increased accident potential," the report just two pages later describes the project modification as having a "less than significant impact" on transportation and traffic. (p. 5-10)

Can the wetlands be removed if they are isolated, or of low quality?

MHA, in presenting its DEIR to the public at the November 21^st workshop, referred to the wetlands in question as "little bitty isolated pieces of damp soil." The question that arises from this comment is whether the quality, or physical isolation from other wetlands, would loosen the prohibition against their removal and fill.

The Beachwood owners made a similar argument over the same wetlands, which the appellate court rejected, concurring with the 1999 Bolsa Chica and 2000 Kirkorowicz decisions:

"Beachwood argues the wetlands here are not worthy of protection under the Coastal Act because they are not a significant resource in themselves and do not act as a buffer for higher quality wetlands in adjacent areas, as was the case in Kirkorowicz. (Kirkorowicz, supra, 83 Cal. App. 4^th at p. 989.) However, as Kirkorowicz states, 'the Coastal Act by its definition of wetland (§30121) does not distinguish between wetlands according to their quality….Simply stated, in determining whether a wetland is protected under the Coastal Act and the LCP, the quality of the wetland is essentially legally irrelevant.' (Id. at p. 994.) Whether or not the site is of high quality or acts as a buffer for other wetland areas, the evidence supports the City's conclusion that the disputed areas are wetlands under the LCP." (Yamagiwa v. City of Half Moon Bay et al, Cal. App. 4^th  (2005))

2. TRAFFIC IMPACTS

For most of the public, especially those living on or near Terrace Avenue, the most practical concern presented by the proposed project is its impact on traffic. Despite the centrality of this issue, there is no narrative in the DEIR's executive summary that discusses traffic and transportation impacts, while the body of the report dedicates fifteen pages to the subject. The comments here will begin with the Coastal Commission's 2001 rejection, which the DEIR does not treat, of the proposed project as traffic mitigation for the subdivision. A striking fact in this regard is that the Commission's rejection of the project was based on traffic considerations, not wetlands. In other words, if no wetlands had been found within the project area, the Commission's rejection of the project would be no less sound.

Why doesn't the DEIR address the Commission's reasons, provided in its 2001 approval of Pacific Ridge, for rejecting the proposed project as traffic mitigation?

It is not possible to conduct a thorough investigation of potential traffic mitigation measures for Pacific Ridge, including the proposed project, without examining the Coastal Commission's consideration of the same project five years ago. As the 2001 coastal development permit relates, "The improvements proposed by the applicant to be provided as a part of the project are installation of a traffic signal at the Terrace Avenue/Highway 1 intersection and widening of Highway 1 to four lanes from North Main Street to 400 feet north of Terrace Avenue." (CDP, p. 33) This is the same proposal that is being made today.

The Commission exhaustively examined the developer's proposed traffic mitigation before rejecting it with the following conclusion:

"Although the proposed signalization would improve left turn movements into and out of Terrace Avenue, it would interrupt flow of through traffic on Highway 1. The distance between the currently signalized North Main Street/Highway 1 intersection and Terrace is approximately 1,000 feet. Spacing signalized intersections on Highway 1 this close could increase congestion on the highway because of insufficient 'stacking' space on the highway." (CDP, p. 44)

The problem cited by the Commission, that the stoplights would be too close to one another, is not acknowledged by the DEIR as a potential impact, although its list of "Thresholds of Significance" includes the following language:

"The proposed project would result in a significant impact if it would…result in a substantial increase in…congestion at intersections." (p. 3-107)

To allow for sufficient stacking space, the Commission preferred positioning a stoplight to the north of Terrace Avenue, that would serve as a Highway 1 access point for multiple eastside neighborhoods:

"Better intersection spacing would be accomplished through the provision of Bayview Drive, located approximately 2,000 feet to the north of Terrace, as the consolidated signalized intersection north of North Main Street." (CDP,  p. 44)

The DEIR does not discuss Bayview as potential alternative access for Pacific Ridge, a discussion that admittedly is impeded at this time by the ongoing litigation between the Beachwood owners and the City. Beachwood is referred to obliquely in the DEIR's rejection of Grandview Boulevard as access, because connecting that road to Pacific Ridge "would require crossing lands that may be identified by the California Coastal Commission as including wetlands." (p. 5-6) It is noteworthy in this context that the DEIR summarily rejects the Grandview alternative to the project because it "may" intrude on wetlands, while supporting the project even though  the DEIR finds that it "would" intrude on wetlands.

Would a stoplight make the Terrace Avenue/Highway 1 intersection safer?

The DEIR states that "signalization of the Highway 1/Terrace Avenue intersection is likely to increase the number of accidents. However, the typical severity of accidents at signalized intersections is less than at unsignalized intersections." (p. 3-113) No data or further information is offered concerning the severity of accidents, but the DEIR does include statistics comparing the rate of accidents for an unsignalized intersection (0.19 accidents per million vehicles) versus a signalized intersection (0.58 accidents per million vehicles). Thus, according to the DEIR (p. 3-113), the rate of accidents would slightly more than triple if Terrace were signalized (a factor of 3.05).

Those statistics assume, however, that the number of vehicles entering the intersection over a given timeframe would remain the same. Using Terrace as sole access for Pacific Ridge would of course increase the traffic at the intersection. The DEIR reports that:

"Terrace Avenue carries about 1,200 vehicle trips per day. The proposed development of the Pacific Ridge residential development would add approximately 680 trips per day to this traffic on Terrace Avenue." (p. 3-111)

680 additional trips per day would thus increase Terrace traffic by a little more than one-half its current usage (a factor of 1.57). Combining the DEIR's statistics comparing signalized and unsignalized intersections, with the projected increase in Terrace traffic, the intersection would experience almost five times as many accidents as it does today (3.05 X 1.57 = 4.79). These statistical projections are difficult to reconcile with the proposed project's stated objective "to facilitate the safe and efficient movement of vehicles, bicycles, and pedestrians at the Highway 1 and Terrace Avenue intersection." (p. ES-2)

PROJECT ALTERNATIVES

Two preliminary issues should be discussed before examining specific alternatives: first, whether the stated scope of the DEIR prejudices consideration of project alternatives, and second, whether the City/Commission/Ailanto settlement agreement (SA) can accommodate project alternatives.

Should the scope of the DEIR be the same as the proposed project's stated objective?

By adopting the proposed project's stated objective (to make the Terrace/Highway 1 intersection safe and efficient) as the DEIR's scope of enquiry, any alternatives to the project which would access Pacific Ridge differently than through that intersection are automatically eliminated. That is why it took the DEIR less than ten pages to dismiss at least eight alternatives, without even considering the Bayview/Highway 1 access favored by the Coastal Commission. For example, the Grandview alternative, mentioned above, "was considered and rejected as a project alternative because it would not serve to 'facilitate the safe and efficient movement of vehicles, bicycles, and pedestrians at the Highway 1 and Terrace Avenue intersection'." (p. 5-7) Foothill Boulevard, discussed below, was also dismissed for the same reason:

"The Foothill Boulevard route was considered for extended discussion in this document but rejected from further consideration as an alternative to the use of Terrace Avenue for Pacific Ridge residential subdivision access, because it would not meet the project objective…." (p. 5-5)

The purpose of the DEIR should have been to offer unbiased analyses of all feasible options for permanent access to Pacific Ridge, helping the City, Commission and public to discover long-term access solutions that maximize mitigation of the subdivision's traffic impacts, while contributing, however possible, to the improvement of both existing and projected future traffic conditions. This approach is absent from the DEIR, which instead offers conclusions – often in conflict with its factual findings – tailored both to the developer's long-held opposition to building an access road to Pacific Ridge, and to his insistence on the use of Terrace.

Can the settlement agreement be fulfilled without the Terrace stoplight and Highway 1 widening?

This question arose at the November 21^st workshop, where Councilmembers unanimously passed a motion directing City Staff to explore what were termed "no light" alternatives (i.e., no stoplight at Terrace). Discussion preceding the vote indicated particular Councilmember interest in "no light" alternatives that preserved the settlement agreement. City legal counsel expressed confidence in that possibility, and promised to prepare a written opinion on the subject.

The problem with this interpretation is that it would have to overcome the plain language of the settlement agreement. The second sentence of the agreement (after the first sentence, requiring that the agreement be signed by the parties) states:

"After City issuance of the coastal development permits specified in Paragraph 7 of this Settlement Agreement, the Settlement Agreement shall be presented to the San Mateo County Superior Court in the case of Ailanto Properties, Inc. v. California Coastal Commission et al., No. 416540, with a request that it be entered as a stipulated judgment of the Court." (SA, p. 2)

To rephrase, "City issuance of the coastal development permits specified in Paragraph 7" is a necessary condition of presenting the settlement agreement to the court, since that action can occur only "after" the CDPs are issued. For that reason, if the CDPs are never issued, or are denied, the settlement agreement cannot be offered to the court as a stipulated judgment.

The next question is: what are the CDPs specified in Paragraph 7? The paragraph is entitled "Coastal Development Permits For Signalization of Terrace Avenue And Widening of Highway One, And For Water Line To Serve Project" and its first sentence reads:

"After execution of this Settlement Agreement, if they have not already done so, the parties will take appropriate steps to stay the Litigation, the First City Litigation, and the Second City Litigation, during which time the City shall hold proceedings to decide whether to issue a coastal development permit ("the Terrace coastal development permit") for the signalization of Terrace Avenue and the widening of Highway 1 necessary therefor." (SA, p. 9)

This sentence from Paragraph 7 has two notable features: first, that the CDPs referred to in the second sentence of the settlement agreement include a permit for the Terrace stoplight and Highway 1 widening; and second, that the City "shall hold proceedings to decide whether to issue" the permit, which it is free to decide either way. The settlement agreement does not require the City to issue the permit, only to decide whether to issue the permit.

What does the settlement agreement prescribe if the City denies the CDP?  Paragraph 10 states:

"…if (a) pursuant to the writ of mandate, the Commission approves the MCDP [for 63 houses] as specified herein; (b) the coastal development permits specified in Paragraph 7 are issued and become final; and (c) CalTrans approves the improvements authorized by the Terrace coastal development [permit], this Settlement Agreement shall thereupon become final and binding on the Parties. If any of the contingencies specified in the preceding sentence fail to occur, or if Ailanto voids this Settlement Agreement pursuant to this Paragraph, this Settlement Agreement shall be of no further force or effect…." (SA, pp. 11-12)

Clearly, if the Terrace CDP is denied by the City, then clause (b) of the first sentence fails to occur, and consequently the "Settlement Agreement shall be of no further force or effect."

In that event, the parties have agreed in advance to "meet and confer regarding how to proceed." (SA, pp. 9,11) If they are able to agree on a renegotiated settlement, the parties will present the new agreement to the court and proceed under its supervision. If not, the parties resume the stayed litigations.

PROJECT ALTERNATIVE #1: 63 HOUSES, NO LIGHT

This alternative was publicly broached for the first time by Councilmembers at the November 21^st workshop, in the context of hoping to preserve the settlement agreement while dispensing with the stoplight. Since the only number of houses mentioned in the settlement agreement is 63, this ad hoc alternative was suggested for consideration.

To our knowledge no formal study has ever been done of this proposal. The DEIR does not mention, much less examine, a '63 houses, no light' project alternative. Consideration of this alternative would need to be preceded by a new court-approved settlement agreement between the three parties and a new DEIR to comply with CEQA, followed by the normal public decisionmaking process concerning CDP issuances first from the City and then the Coastal Commission.

More importantly this proposal, which would require even less traffic and access mitigation than the measures currently under consideration, takes an awkward step in the wrong direction. The sustained public outcry against the settlement agreement has been based on the growing recognition that the City and Commission have not required adequate mitigations of the development's negative impacts, to ensure that Pacific Ridge is a long-term benefit to the environment, community, and public at large.

PROJECT ALTERNATIVE #2: 40 HOUSES, NO LIGHT

Unlike the new proposal just considered, this project alternative has always been the real fall-back position, because arguments can be made that the 2001 Coastal Commission approval does permit construction of 40 houses using Terrace Avenue as access. A closer examination reveals, however, that the DEIR is positing factual findings – that permanent access other than Terrace is not available to Pacific Ridge – which would make the Commission's permitting language no longer apply to the facts on the ground. Here is the approval language, as reprinted in the DEIR:

"Permanent vehicular and pedestrian access to serve the subdivision shall be provided along either the Bayview Drive right-of-way, from Highway 1, or the Foothill Boulevard right-of-way, from Highway 92. The applicant shall pay his fair share for signalization and associated highway intersection lane improvements for the selected permanent entry roadway. The permanent entry roadway shall not be located in, or within 100 feet of, a wetland, as defined in Half Moon Bay LCP Zoning Ordinance Section 18.38.020.E, or in, or within 30 feet of a riparian area, as defined in Half Moon Bay LCP Zoning Ordinance Section 18.38.020.B, provided that improvements to the existing Foothill Boulevard right-of-way segment adjacent to the easterly side of Half Moon Bay High School may occur within the right-of-way if existing adjacent riparian vegetation or wetland areas outside the right-of-way are protected. If Foothill Boulevard is the permanent entry roadway, it shall be designated and constructed as a two-lane street (with a sidewalk and bike lane) to serve the subdivision project, adjacent residences and ranches, and as an emergency additional entry to Half Moon Bay High School, but shall not be connected to Terrace Avenue, Bayview Avenue, or Grandview Avenue.

"Until completion of the permanent entry road to the subdivision…Terrace may be used as vehicular access for up to the first 40 homes in the subdivision. Following completion of the permanent entry road to the subdivision, an emergency/fire department gate shall be installed across Terrace Avenue…[and] Terrace Avenue to the east of the gate shall thereafter be used for emergency vehicular access only….

"During Project construction, construction vehicle and construction worker traffic may utilize Terrace Avenue to access the Project site, provided that if either the Bayview Drive right-of-way, from Highway 1, or the Foothill Boulevard right-of-way, from Highway 92, is available for use by the applicant then such accessway other than Terrace Avenue shall be used to gain construction access to the subdivision project site…." (pp. 5-4 to 5)

The first observation that can be safely made from reading this approval language is that the Commission could not have written it without firmly and consistently believing that permanent access to Pacific Ridge other than Terrace Avenue was available. To become doubly convinced, imagine believing the contrary – that there exists no access to Pacific Ridge other than Terrace – while writing the above passages. Every single sentence contradicts the belief that no alternative permanent access exists for Pacific Ridge. The DEIR itself acknowledges that the Commission "approved the use of Terrace Avenue for construction and access for 40 residential units, until such time that a permanent access road is constructed." (p. 5-2; emphasis added)

Yet the DEIR concludes that construction of Foothill Boulevard is "environmentally infeasible" and "legally impermissible" (p. 5-5) due to wetlands issues. Because the DEIR does not even discuss the possibility of Bayview Avenue as alternative permanent access, it can be assumed the DEIR's conclusion is that Terrace provides the only possible access for Pacific Ridge. If that were true, the Commission's prior approvals of '40 houses/no light' – clearly predicated on permanent access other than Terrace – would need to be reconsidered in the light of new evidence provided by the DEIR that the Commission's factual assumptions were in error. In the event that evidence were confirmed, no subdivision of lands on the Pacific Ridge property could be permitted.

Before turning to an examination of the DEIR's basis for concluding that Foothill is unavailable as permanent access, inconsistencies in the DEIR's presentation of traffic data for the '40 houses/no light' alternative should be pointed out. The subject is treated on page 5-3, where it is calculated that 40 new houses would add "approximately 36 percent" to the existing Terrace AM peak hour traffic. That figure is based on an estimated 10.8 daily vehicle trips per household, the same average used to estimate the impacts of 63 new houses. Because the DEIR estimates that Terrace already has 1200 daily vehicular trips, and that 40 new houses would add 40 X 10.8, or 432, new trips per day, the 36% increase in daily trips would be experienced at all times, not only the AM peak hours as reported.

The same passage then underreports that '40 houses/no light' would result in "the addition of 35 vehicular trips on a daily basis" (emphasis added), before admitting that 40 new houses "would increase traffic congestion at the intersection, with an incremental decrease in the intersection's LOS, which is already at LOS F." (p.5-3) Nevertheless, despite calculating a 36% overall increase in traffic congestion, seven pages later (in Table 5.6-1) the DEIR bizarrely reports that the '40 houses/no light' alternative would have "No impact" on transportation or traffic. (p. 5-10)

PROJECT ALTERNATIVE #3: FOOTHILL BOULEVARD

The Half Moon Bay City Council, in approving the Pacific Ridge project on March 16, 1999, required in Condition 18 that the developer build Foothill Boulevard:

"18. The Applicant shall construct Foothill Boulevard as shown on the Vesting Tentative Map, except that there will be two drive lanes and a bike lane in-lieu of four drive lanes." (Council Minutes, p. 8)

As quoted on page 11 above, the Coastal Commission, in its modified approval of Pacific Ridge in 2001, required Foothill or Bayview as "permanent vehicular and pedestrian access to serve the subdivision." Section 2.4 of the approval, titled "Project Site Access," states: "Permanent access to the site shall be provided by the construction of either Bayview Drive or Foothill Boulevard." (CDP, p. 41)

The City's General Plan Circulation Element states:

"Foothill Boulevard is planned to extend from a signalized intersection at Highway 92 north to an all-way stop sign-controlled intersection at the proposed Bayview Drive." (Appendix B, Road Improvements, Paragraph C)

The General Plan also recognizes that a Foothill Boulevard/Highway 92 intersection "…provides the only alternative to Highway 1 for access between northern residential areas to the west and east of Highway 1…." (Appendix B, Traffic Improvements, Paragraph 18)

The City's LCP Policy 10-31, describing Foothill Boulevard, states:

"This roadway [Foothill] shall provide for through-traffic and local street connections shall be minimized to the extent feasible and on-street parking shall not be allowed."

Despite existing, Commission-certified LCP policies and General Plan elements, as well as Pacific Ridge approvals from both the City and Commission, all of which plan for and/or require Foothill Boulevard, there is the common belief, furthered by the DEIR, that 'Foothill is dead' because of the existence of wetlands.

THE DEIR'S "FOOTHILL BOULEVARD FEASIBILITY ANALYSIS"

Appendix O, Volume II of the DEIR is a March 2006 study of Foothill that includes a July 2005 environmental impact "Foothill Boulevard Feasibility Analysis" (FBFA), both commissioned by the developer. The DEIR relies upon this environmental analysis to conclude that Foothill is "legally impermissible" and "environmentally infeasible because of numerous significant wetland and other environmental constraints that would prevent its development." (p. 5-5)

There is a satellite photo of the Foothill area on page 14 of the FBFA, with "Potential Coastal Act Wetland" delineations marked in yellow. The largest delineation abuts an extensive outdoor high school playground, with a number of basketball courts and a service road, all of which is hardscaped in asphalt. The City and School District have in the past discussed using the eastern portion of the hardscape for Foothill. The second largest delineation is east of the tennis courts, in a drainage ditch separating the courts from the dirt road leading to the properties adjacent to Pacific Ridge on the south and east. Other than these two larger delineations, there are a number of smaller delineations near various dirt roads that crisscross the area. One notable aspect of the photo is that the presumed course that Foothill would follow is either existing dirt road, or existing hardscaped playground and service road.

It should also be noted that the Commission's 2001 Pacific Ridge approval, quoted from the DEIR above, after requiring a 100 foot setback from  a wetland, and a 30 foot setback from a riparian area, offers the following exception to that requirement:

"…improvements to the existing Foothill Boulevard right-of-way segment adjacent to the easterly side of Half Moon Bay High School may occur within the right-of-way if existing adjacent riparian vegetation or wetland areas outside the right-of-way are protected." (p. 5-5)

This exception allows construction of Foothill within its existing right-of-way east of the high school, so long as riparian or wetland areas outside the right-of-way are protected. Although virtually all of the FBFA-delineated potential wetland areas – including the two largest next to the high school playground and tennis courts – are by this provision exempted from the need for buffer zones, so long as improvements within the right-of-way protect them, this crucial fact is not mentioned either in the environmental analysis or the DEIR.

Are "Potential Coastal Act Wetland" areas correctly delineated in the FBFA?

The FBFA has a prominent "Wetland and Riparian Habitats" heading on page 13, while referring to two patches of willows as "riparian habitat" elsewhere in the study, yet admits the following:

"In order to classify as a riparian habitat under the ZC [HMB's zoning code], these areas would need to drain onto a perennial or intermittent stream or tributaries to these streams (ZC 18.38.020 B)…Therefore, based on the site survey, it appears that both of these patches of willows are separated from any streams or tributaries to streams. Because of this, they would not be considered riparian habitat as it is defined in the ZC."

In other words, based on the evidence, the FBFA concludes that there is no riparian habitat anywhere within the area of study. The passage just quoted continues with this sentence:

"However, because willows are typically associated with wet soil conditions, these areas would be considered wetlands as defined in the ZC and therefore sensitive habitat." (FBFA, p. 13)

The difficulty with this assertion concerning the "wet soil conditions" is the study's admission on the same page that "no soils or hydrology information was collected."

Concerning wetlands, the FBFA states:

"Several areas that would classify as wetlands according  to the Half Moon Bay Zoning Code were mapped within the project area. Most of these were characterized by the presence of hydrophytic vegetation. Areas where these plants dominated the vegetative community were mapped as potential Coastal Act Wetlands…All mapping was based on the presence of hydrophytic plants only…." (p. 13)

Wetlands, therefore, are only "areas where these [hydrophytic] plants dominated the vegetative community" (emphasis added). This distinguishes 'dominance' from mere 'presence': otherwise, a single instance of a hydrophytic plant would indicate a wetland, absurdly requiring a circular 100 foot development buffer to protect any such miniature 'wetland.'

This distinction (dominance vs. presence) congrues with all applicable regulatory definitions of a wetland. The U. S. Fish and Wildlife Service defines 'wetland' as including areas where "the land supports predominantly hydrophytes" (from USFWS's "Classification of Wetlands and Deepwater Habitats of the United States"; emphasis added). The Coastal Commission's definition refers to "land with predominantly hydrophytic cover" (California Code of Regulations, Title 14, Section 13577; emphasis added). Both of these definitions are incorporated by reference in Half Moon Bay's LCP.

In the Beachwood lawsuit mentioned above, the court phrases the case's central question thus: "Are vernally wet areas covered with hydrophytic vegetation wetlands under the LCP, or must they also contain hydric soils?" (emphasis added) Before reaching its conclusion three pages later that "the City rationally interpreted its LCP to treat vernally wet areas covered with hydrophytic vegetation as wetlands" (emphasis added), the court made reference to "predominantly hydrophytic cover," "covered with hydrophytic vegetation," "predominantly hydrophytes," "hydrophytic cover," "sufficient hydrophytic cover," "covered in hydrophytic vegetation," and finally "covered by predominantly wetland vegetation." There can be no doubt that this unappealable judicial ruling, handed down last year on a property adjacent to Pacific Ridge, interpreted the regulatory language such that a wetland is defined not by mere hydrophytic presence, but by a predominance and cover of hydrophytes.

A site examination of the FBFA's 'potential wetland' delineations of the Foothill area casts considerable doubt whether the study properly observed the legal distinction adumbrated above.  Even the FBFA's explanation of its methodology, that wetlands "mapping was based on the presence of hydrophytic plants only," and "most of these [areas mapped as wetlands] were characterized by the presence of hydrophytic vegetation"(emphasis added), implies that some of the areas mapped as wetlands did not have hydrophytic vegetation. Moreover, recent photographic evidence of the Pacific Ridge property, in the areas where houses are proposed to be built, appears to show similar hydrophytic presence comparable to areas the FBFA delineates as wetlands, despite the fact that the Pacific Ridge property is currently used as pasture for cattle, who graze the hydrophytes.

What if there are genuine wetlands in Foothill's path, which are not exempted by the right-of-way provision?

The possibility that Foothill could be realigned to avoid wetlands was recognized in the 2001 Commission approval for Pacific Ridge:

"According to a preliminary biological study conducted for the Draft EIR prepared for the City for the proposed construction of Foothill Boulevard, it is possible that Foothill can be realigned to avoid wetlands." (CDP, pp. 42-43)

The exploration beginning on page 2 above, whether there exist special circumstances such that the Terrace signalization/Highway 1 widening could remove wetlands, as the Devil's Slide tunnel is permitted to do, has relevance to the question of whether Foothill could be constructed, if there were unavoidable wetlands. As discussed earlier, Bolsa Chica ruled that a roadway can intrude on wetlands only if it is needed to "maintain existing traffic capacity," and no other alternatives exist. 

In the Devil's Slide situation, the letter from Commission Staff quoted on page 3 above explained that "…the tunnel project presented an unavoidable conflict between Coastal Act policies that on the one hand promote public access and on the other prohibit wetland fill…," and that the promotion of public access took precedence. The resolution of the conflict was not straightforward, and involved a variety of considerations.  For example, one feasible option – which would not involve filling wetlands – would have been to redouble efforts to reinforce the road in its current alignment (a 'no project' alternative). CalTrans saw that as throwing good money after bad, and the Commission accordingly took a long view of how they could best promote public access for the future. Another example of the complexity of considerations is the fact that the tunnel construction did not have to fill any wetlands at all, if it were constructed with a curve toward its northern end.  This option was discarded, not because it would have compromised public access, but because a straight tunnel was considered by CalTrans to be easier, cheaper, and more aesthetically pleasing.

Concerning the Bolsa Chica requirement, on May 2^nd, 2006, Coastside Community First submitted to the City an outline examining Foothill's ability to improve existing traffic and coastal access problems, among other public benefits, while providing permanent access for Pacific Ridge. For your convenience, a copy of that paper is attached below. Our affirmative conclusions are of course debatable, although they are in agreement with the City's LCP Policy 10-31 and General Plan Circulation Element quoted above. Also, the 2001 Commission approvals for Pacific Ridge emphasize the coastal access problems presented by Highway 92, which Foothill would predictably improve by splitting off the northbound portion of traffic before it hits the bottleneck at 92's western terminus. Whether or not one is persuaded by these arguments, they have been supported over the years by enough expert consultants, as well as by public agencies, officials and policy, that they are certainly arguable. And since no other alternatives with similar benefits for existing traffic conditions have been offered, the Bolsa Chica requirements are fulfillable.

Concerning the Commission requirements, the question is similar: would Foothill facilitate coastal access, and especially ameliorate coastal access problems, such that the benefit would outweigh the detriment of wetlands intrusion?

The answer involves a weighing and balancing of different and opposing impacts. For example, if the quantity of wetlands to be intruded upon by Foothill is relatively small, something that these comments cannot pretend to exactly calculate, then the benefits to coastal access would correspondingly need to be relatively small to outweigh them. The benefits, however, appear to be substantial. Nevertheless, the traffic problems Foothill could solve are an oppressive reality about which Coastal Commissioners and their staff might need to be educated.

It is understandable that public officials who do not regularly travel west on Highway 92 toward the coast would not be aware of the severely compromised coastal access that is the ever-worsening status quo. This statement can only be proved, and fully appreciated, by experience. Anyone who has attempted to come west over 92 from the middle of the day onward, especially on a sunny weekend, will predictably be stuck in standstill traffic as Half Moon Bay is approached. Local residents know and avoid the westbound bottleneck, and typically warn friends and family from traveling 92 westbound during peak hours. The $11-12 million pricetag that the DEIR's studies estimate for Foothill not only includes the roadway and stoplight, it includes all the costs of almost a half-mile of widening 92 to four lanes, which would integrate with the four-laning of 92 now underway with the 92/Main project.

A skeptical Commission staff member, in the same letter to Coastside Community First cited above, states:

"In order to permit wetland fill for the construction of Foothill Boulevard, the Commission would first have to determine that not constructing this road would be in conflict with the Coastal Act."

The existing, severely compromised coastal access over westbound 92 is itself in longstanding conflict with the Coastal Act, whose purpose is to promote public access to the coast. Foothill Boulevard has been the City's only solution to dividing that traffic before it compacts east of Main Street. Objective analysis and consistent treatment of issues lead us to suggest that – as the City and Commission rightly recognized and required before entering into the 2004 settlement agreement – the best way to achieve that goal is to condition development at Pacific Ridge upon construction of Foothill Boulevard.

Please instruct MHA to incorporate the analysis contained in this letter into their next draft, and to respond to each of the issues raised. Finally, for reasons of length we have not attempted to address all of the potential impacts of the proposed project, beyond traffic and biological. Other cumulative impacts (e.g., noise and other pollution, traffic congestion's effects on economic activity, emergency vehicle access, etc.) have their place in the public dialogue, and our silence on any subject should not be construed as implicit acceptance of DEIR findings or conclusions.

Respectfully submitted,

Charles Gardner, CCF President