SUBJECT: American Mall Properties LLC: Final Environmental Impact Report (FEIR) for the proposed Town Center Mall Modifications Project located on a 37.54 acre site bounded by Mathilda, Washington, Sunnyvale and Iowa Avenues in Downtown Specific Plan Subdistrict 18, 18a, and 18b Zoning District. (APN: 209-34-003,006, 007, 008, 013; 209-35-001. 002, 005, 007, 008, 009):

Motion 1999-0098- Certify Final Environmental Impact Report (FEIR)

The purpose of this public hearing is to consider the Final Environmental Impact Report (FEIR) for the Town Center Mall Modifications Project. The proposed project includes the following:

• Addition of a 82,000-square-foot (4,000 seat) 20-screen Cineplex
• Approximately 205,000 square feet of other additional retail, entertainment, and restaurant space
• Removal of the central portion of the existing two-level parking structure
• Two new parking structures; located at corner of Washington/Sunnyvale Avenues and Iowa/Sunnyvale Avenues

The FEIR serves as the environmental documentation for the proposed project, which includes the following elements:

• Amendment to the Sunnyvale Downtown Specific Plan to allow increase in Regional Retail use and change the existing Office land use designation along a portion of Mathilda Avenue to Regional Retail

• Amendment of the Precise Zoning Plan to reflect the Sunnyvale Downtown Specific Plan amendments

• Special Development Permit to allow construction of the proposed cinemas, retail buildings and two new parking structures

• Tentative Parcel Map to incorporate lot split, lot merge and lot line adjustments.

The Draft EIR (DEIR) was circulated for a 45-day public review and comment period (January 12, 1999-February 26, 1999). Seventeen letters were received commenting on the EIR. Copies of those letters and responses to the comments were prepared, in addition clarifications and corrections to the Draft EIR have been prepared. These items are contained in a freestanding document titled the Final EIR. The Final EIR includes, by reference, the document titled Draft EIR. The FEIR was distributed to the Planning Commission and City Council on March 5, 1999. The responses to the comments on the DEIR are included in Response to Comments Section in Attachment 1.

In accordance with the California Environmental Quality Act (CEQA), the FEIR must be certified as a complete and accurate assessment of environmental impacts before action can be taken on the actual project. The Planning Commission and City Council are asked to consider the content of the FEIR to determine the adequacy of the analysis, mitigation measures and overriding considerations for the topics discussed. The FEIR is not a discussion of the merits of the project. The FEIR consists of the Draft EIR; comments and recommendations received on the Draft EIR; a list of persons, organizations and public agencies commenting on the Draft EIR; and a response of the Lead Agency (the City) to significant environmental points raised in the review and consultation process. If it is determined that the content of the FEIR is adequate, the City Council may certify the document. If it is determined that the FEIR is not adequate, the Planning Commission or City Council may state those areas of discussion where the document is deficient and require that additional analysis be prepared prior to certification.

Staff recommends certification of the FEIR for the Town Center Mall Modifications Project.

On November 30, 1998, an Initial Study prepared for the project determined that significant environmental impacts might result from project development and required that an Environmental Impact Report (EIR) be prepared. The consulting services of Wagstaff and Associates were secured for the preparation of the EIR. Areas of potential impact to be considered in the document include:

A Notice of Preparation was prepared and was mailed to the neighboring cities, state and other public agencies requesting input on the scope of the EIR. No input was received. The Draft EIR was prepared and was issued for public review and comment on January 12, 1999. During the 45-day review that followed, public agencies and members of the public submitted written comments on the DEIR. The Planning Commission and City Council each had two Study Sessions regarding the EIR and the proposed project. The publics review and comment period closed February 26, 1999.

Seventeen letters were received during the 45-day comment period.

Section 21061 of the California Environmental Quality Act (CEQA) defines an EIR as "an information document…the purpose of an EIR is to provide public agencies and the public in general with detailed information about the effect which a proposed project is likely to have on the environment; to list ways in which the significant effects of such a project might be minimized; and, to indicate alternatives to such a project". The FEIR is designed to identify all environmental impacts and recommend mitigation for those impacts that are considered unavoidable and significant. The mitigation must render the impact less than significant. The FEIR for the Town Center Mall Modifications Project has determined that significant environmental impacts remain in only one topic area after application of mitigation measures. The following discussion includes a brief summary of the project proposal and highlights the environmental impacts associated with the project and mitigation measures proposed by the FEIR For a more detailed discussion, please refer to the FEIR.

The applicant, American Mall Properties, LLC, is proposing the following modifications at the 37.54 acre project site:

• Addition of an 82,000-square-foot (4,000 seat) 20-screen cinema complex
• Addition of approximately 205,000 square feet of other additional retail, entertainment, and restaurant space
• Removal of the central portion of the existing two-level parking structure
• Construction of two new parking structures; located at the corners of Washington/Sunnyvale Avenues and Iowa/Sunnyvale Avenues

As noted in the EIR, an impact can either be categorized as:

• Significant/Potentially Significant Impact
• Significant Cumulative Impact
• Less than Significant Impact

The criteria used in this EIR to determine whether an impact is or is not "significant: are based on:

• CEQA-stipulated "mandatory findings of significance":--ie., where any of the specific conditions have determined to constitute a potentially significant effect on the environment, which are listed in CEQA Guidelines section 15065
• The relationship of the project effect to the adopted policies, ordinances and standards of the City of Sunnyvale and of responsible agencies; and/or
• Commonly accepted practice and the professional judgement of the EIR authors (Wagstaff and Associates) and City staff.

Specific criteria are discussed and included for each of the sections (e.g.: Land Use an Planning, Traffic, Public Services etc) in the EIR for the Mall Modifications Project.

The EIR identifies those impacts that are expected to be "significant" and corresponding mitigation measures warranted to eliminate or reduce those impacts to less than significant levels. If a particular impact cannot be mitigated to a less-than-significant level, the EIR identifies that impact as "unavoidable."

The Summary section of the EIR contains a table (No. 2.1) which lists all impacts, mitigation measures and responsibilities. Detail discussion of these impacts and mitigation measures are located in the related section contained in the EIR.

The following section includes a discussion only on the significant unavoidable impacts.

The FEIR determines Air Quality as the only environmental factor found to have a significant impact.

Construction of the project and traffic related impacts will result in an increase in regional air emissions. The following impact, even as mitigated, is the one environmental impact related to the project that remains significant and unavoidable. The fact that this impact remains significant, requires the preparation of and approval of a Statement of Overriding Considerations if any component of the project is to be approved.

• Emissions of criteria pollutants generated by the operation of the proposed project would increase total air pollutant emissions in the region.

Staff notes that some air quality impacts are temporary and therefore not considered significant. Mitigation measures to control dust are included in the EIR.

A finding of overriding considerations concerning air quality was made for the Downtown Specific Plan general plan land use designations were adopted in 1990.

CEQA requires that alternatives to the proposed project be incorporated into the document. The basic intent of this section of the document is to consider alternatives that would reduce or eliminate significant impacts caused by the proposed project. The alternative project section should address minimizing or eliminating the unavoidable impacts on air quality (unavoidable impact of construction noise could be considered temporary).

This section of the FEIR considers the following three alternatives:

• No Project
• Redesigned or Eliminated Cinema Tower
• Reduced Cinema size

Table 14.1 (page 14-2 of EIR) provides a comparative matrix of the impacts associated with the alternative projects. This table is useful for a quick comparison of the relative environmental impacts associated with each of the alternatives. The decisionmakers can require the alternative project or a modified alternative project through the Special Development Permit; but not through certification of the EIR. Other alternatives may be considered provided the scope of environmental review sufficiently addresses the new alternative.

The Mall Modifications Project Mitigation Monitoring and Reporting Program for Significant Impact is required by CEQA to ensure implementation and monitoring of all mitigation measures. A Monitoring Program identifies the mitigation measure, who is responsible for implementation, monitoring schedule and who is responsible to do the monitoring. All of the monitoring responsibilities will be handled by the City of Sunnyvale Community Development Department, Public Works Department and Public Safety Department. The monitoring plan will be completed with the assistance of the EIR consultant, after action is taken on the project itself.

Section 15093 of the CEQA Guidelines defines the three requirements that relate to overriding considerations (Attachment 4).

• CEQA requires the decision-making agency to balance, as applicable, the economic, legal, social, technological, or other benefits of a proposed project against its unavoidable environmental risks when determining whether to approve the project. If the specific economic, legal, social, technological, or other benefits of a proposed project outweigh the unavoidable adverse environmental effects, the adverse environmental effects may be considered "acceptable."
• When the lead agency approves a project which will result in the occurrence of significant effects which are identified in the final EIR but are not avoided ore substantially lessened, the agency shall state in writing the specific reasons to support its action based on the final EIR and/or other information in the record. This statement of overriding considerations shall be supported by substantial evidence in the record.
• If an agency makes a statement of overriding considerations, the statement should be included in the record of the project approval and should be mentioned in the Notice of Determination (NOD). This statement does not substitute for, and shall be in addition to, findings required pursuant to section 15091.

As noted in the Air Quality section of the EIR, emissions of "criteria air pollutants" generated by the traffic would increase total air pollutant emissions that exceed Bay Area Air Quality Management District (BAAQMD) thresholds of significance. BAAQMD impact assessment guidelines provide that projects that would individually have a significant project air quality impact would also be considered to have a significant cumulative air quality impact. Even as mitigated, this environmental impact related to the project remains significant and unavoidable.

These impacts remain significant and have been incorporated into the draft Statement of Overriding Considerations (Attachment 3).

Testimony is sometimes received during the public hearing process relating to "significant new information." For the purposes of an EIR, new information is considered "significant" when the following would apply:

• A new substantial environmental impact resulting from the project is identified;
• A substantial increase in the severity of an environmental impact is identified;
• A new feasible project alternative or mitigation measure is identified but that the project proponent refuses to adopt;
• The Draft EIR is so fundamentally and basically inadequate and conclusory in nature that public comment of the draft was, in effect, meaningless.

The "rule of reason standard" is applied to judicial review and EIR contents. The courts do not hold an agency to a standard of absolute perfection, but rather require only that an EIR show that an agency has made an objective, good-faith attempt at full disclosure. The scope of judicial review does not extend to correctness of an EIR’s conclusion, but only the EIR’s sufficiency as an informative document for decision makers and the public. Legal adequacy is characterized by:

• All required contents must be included;
• Objective, good-faith effort at full disclosure;
• Perfection is not required;
• Exhaustive treatment of issues is not required;
• Minor technical defects are not necessarily fatal;
• Disagreement among experts is acceptable.

Staff believes that the proposed FEIR, consisting of the Draft EIR comments and recommendations received on the Draft EIR, a list of persons, organizations and public agencies commenting on the Draft EIR and, a response to comments received, meets the requirements of CEQA both in content and format. As noted in the Report in Brief section of this report, should it be determined that the FEIR is not adequate, the Planning Commission or City Council may state those areas of discussion where the document is deficient and recommend that additional analysis be prepared prior to certification.

Any changes to the mitigation measures in the FEIR may affect the accompanying determination of significance. The deletion or alteration of a mitigation measure may result in a determination of a significant unavoidable impact where a less than significant impact was determined as originally mitigated. Should there be an action to certify the document with changes to mitigation measures proposed by the FEIR, then revised findings to the Statement of Overriding Considerations may need to be prepared.

Notification of the public on this EIR included the following:

Notice of Preparation

• This notice is required by CEQA to inform agencies of the intent to prepare an EIR and was mailed on December 1, 1998 to Responsible Agencies and other public agencies.

Notice of Completion

• This notice is required by CEQA announcing the completion of the Draft EIR and was mailed to State of California Office of Planning and Research on January 11, 1999.

Notice of Availability of Draft EIR

• This notice announces the 45-day public review and comment period to run from January 12, 1999 to February 26, 1999.
• This notice was mailed to 840 properties in the vicinity (Hendy Avenue on the north, Waverly Avenue on the west, El Camino Real on the south and Bayview Avenue on the east) of the project site
• Reference copies of the Draft EIR were available at the Library, the Community Center and One-Stop Permit Center. Copies were also available for purchase.

Distribution of Draft EIR

• Copies of the report were sent to neighboring cities, state and other public agencies
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Distribution of Final EIR

• Copies of the FEIR were mailed or delivered sent to neighboring cities, state and other public agencies and anyone who commented on the Draft EIR.

Planning Commission Public Hearing on March 8, 1999

City Council Public Hearing on March 11, 1999

• Notices of these hearings were published in the Sun newspaper 20 days prior to the scheduled hearings
• Notices of these hearings were mailed to 840 properties in the vicinity of the proposed project site
• Notices of these hearing were posted on the project site.

The decision maker’s role is to determine if the format, analysis and comment of the FEIR is adequate. A Statement of Overriding Considerations accompanies the FEIR. No separate action is required on these documents.

1. Certify the FEIR for the Town Center Mall Modifications Project.
2. Determine that the FEIR is not adequate, state those areas of discussion where the document is deficient and recommend that additional analysis be prepared prior to certification. The Planning Commission may proceed with recommendations on other actions even if the Commission recommends additional work on the FEIR. No project related actions shall be taken (by the Council) until the FEIR is certified. As noted earlier, certification does not approve or deny any element of the project.

Alternative 1.

Prepared By:

Reviewed By:

Robert S. LaSala

City Manager

Attachments:

1. Final Environmental Impact Report/Response to Comments